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A  TREATISE 


0PON   SOME  OF  TBS 


GENERAL  PRINCIPLES  OF  THE  LAW, 


WHETHER  OF  A 


LEGAL,  OR  OF  AN  EQUITABLE  NATURE, 


INCLUDING  THEIR 


EELATIOE^S    AND    APPLICATION 

TO 

ACTIONS  AND  DEFENSES 

IN   GENERAL, 

^  WHETHER  IN 

COURTS.  OF  COMMON  LAW,  OR  COURTS  OF  EQUITY; 

•  AND  EQUALLY  ADAPTED  TO 

COURTS  GOVERNED  BY  CODES. 


By  WILLIAM  WAIT, 


COUNSELOR  AT  LAW. 


VOLUME  L 


ALBAISTY: 

WILLIAM    GOULD    &    SON, 

Law  Booksellers  and  Publishers. 

1877. 


T 


Entered,  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-seven. 

By  WILLIAM  WAIT, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


WEED,  PARSONS  AND  COMPANY, 

PKINTERS    AND    8TEREOTYPER8 

ALBANY,  N.   Y. 


PREFACE. 


At  the  present  time  no  legal  work  is  more  desired  than  one 
which  gives  in  a  concise  and  accurate  form  those  general  princi- 
ples of  law  and  of  equity  which  are  recognized  and  enforced  by 
the  courts  of  the  several  States  of  the  Union.  It  is  familiar 
learning  that  these  principles  were  most  of  them  originally 
defined,  declared  and  settled  by  the  English  courts,  and  were 
subsequently  adopted  by  our  courts,  so  far  as  they  were  adapted 
to  our  wants  and  our  condition.  In  the  older  States,  these  prin- 
ciples have  been  extensively  discussed,  applied  and  enforced ; 
and  in  the  States  more  recently  created,  the  courts  constantly 
consult  the  decisions  of  the  courts  of  the  older  States.  As  a  nat- 
ural result,  it  is  found  that  there  is  a  remarkable  harmony  in 
the  general  principles  of  American  law.  There  are  discrepancies 
and  contradictions,  in  some  instances,  between  the  decisions  of 
different  States,  and  statutes  have  also  caused  other  differences 
between  State  laws.  But  notwithstanding  these  exceptional 
decisions  or  statutes,  it  may  be  regarded  as  settled  that  there  is 
a  great,  uniform  and  settled  system  of  American  law. 

To  collect  and  present  these  principles  in  as  extensive  a  man- 
ner as  practicable,  and  to  give  as  full  illustrations  of  the  rules, 
with  their  proper  exceptions,  qualifications  and  modifications,  is 
the  object  of  the  present  work.  The  cases  cited  will  be  taken 
indiscriminately  from  the  English  reports,  from  those  of  the 
United  States  'courts,  and  from  those  of  the  several  States.  The 
value  of  authorities  thus  collected  and  arranged  will  be  evident 
to  every  lawyer. 

Every  judge  and  every  judicial  officer,  every  member  of  the 
legal  profession  engaged  in  practice,  and  every  student  of  the 
law  constantly  finds  it  necessary  to  examine  the  points  decided 
by  the  courts.    These  decisions  are  sometimes  read  from  the 


ry/i  rii>B  os^ 


iv  PREFACE. 

reports  themselves,  and  this  is  the  preferable  method  when  prac- 
ticable, and  when  the  reports  at  hand  furnish  the  desired  infor- 
mation. But  when  a  new,  an  intricate  and  an  important  legal 
question  arises,  how  unsatisfactor}^  is  the  result  of  a  search 
through  such  reports  as  are  accessible  to  the  greater  portion  of 
the  profession  !  To  obviate  this  difficulty,  and  to  ascertain  what 
has  been  adjudged  upon  such  points,  if  the  reports  themselves 
cannot  be  had  and  examined,  requires  a  resort  to  digests  and  to 
elementary  or  text-books.  But  even  this  method  has  its  disad- 
vantages, and  is  often  quite  unsatisfactory,  since  a  complete  set 
of  digests,  English  and  American,  or  a  full  set  of  elementary 
works  upon  all  or  even  most  of  the  titles  of  the  law,  will  not 
often  be  found.  To  purchase  all  the  reports,  English  and  Ameri- 
can, is  beyond  the  means  of  most  of  the  profession,  and  if  they 
possessed  the  money,  so  large  an  investment' in  books  would  be 
most  unprofitable,  except  in  some  very  rare  instances  indeed. 
As  a  general  thing,  the  profession  have,  therefore,  been  com- 
pelled to  rely  upon  such  text-books  and  digests  as  were  acces- 
sible, and  under  existing  circumstances,  it  was  the  most  practi- 
cable, as  well  as  the  best  thing  that  could  be  done.  But  if  one 
desires  to  ascertain  what  has  been  adjudged  in  any  or  all  of  the 
English  and  American  courts,  and  he  purchases  all  the  necessary 
digests  for  that  purpose,  the  cost  will  be  found  to  far  exceed  the 
general  supposition  of  those  who  have  not  examined  the  matter. 
To  settle  this,  it  is  only  necessary  to  ascertain  what  is  the  lowest 
price  of  a  complete  set  of  the  best  English  digests,  of  the  United 
States  digests,  and  of  the  digests  of  the  several  States.  It  is  for- 
tunate that  there  is  a  method  by  which  this  expense  can  be 
greatly  reduced,  and  especially  is  this  true  in  view  of  the  rapid 
increase  of  the  volumes  of  reports  in  this  country  and  in  Eng- 
land, and  it  is  a  fact  which  the  profession  may  as  well  carefully 
consider,  that  even  now  it  is  not  possible  for  most  of  them  to 
know  what  has  been  decided  by  all  these  different  courts,  except 
through  the  aid  of  digests.  And  if  this  is  so  at  the  present  time, 
how  rapidly  and  surely  will  tlie  difficulty  increase !  In  the 
future^  the  American    lawyer  must  rely  upon  the   general 


PREFACE.  V 

abridgments  or  digests  for  full  information  as  to  the  decisions 
of  the  English  and  American  courts.  Every  lawyer  loill  see 
that  this  is  unavoidable,  and  he  will  promptly  avail  himself 
of  this  resource,  if  offered  in  a  desirable  form.  To  examine  all 
the  cases  decided  upon  a  given  point  is  seldom,  if  ever,  neces- 
sary, because  the  same  point  lias  been  adjudged  again  and  again 
in  the  different  courts  of  the  same  State,  or  of  those  of  the  sev- 
eral States,  and  even  in  the  English  courts.  In  such  cases,  all 
that  is  required  is,  to  find  a  sufficient  number  of  reliable  authori- 
ties upon  the  point  under  examination.  To  secure  this  result,  it 
is  believed  that  an  extensive,  an  accurate  and  a  carefully  selected 
collection  of  cases  taken  from  all  the  reports,  and  illustrating  all 
the  prominent  principles  of  the  law,  would  meet  the  wants  of  the 
profession. 

Every  person  who  is  at  all  conversant  with  the  examination  of 
legal  questions,  and  the  trial  or  argument  of  causes,  knows  that 
they  must  be  founded  upon  contracts  or  arise  from  torts.  The 
plan  of  this  work  is  to  discuss  the  entire  subject  of  contracts  and 
of  torts.  To  do  this  properly  requires  a  general  division  of  these 
subjects,  and  a  separate  discussion  of  each  subject  by  itself. 

In  every  litigation  it  will  be  found  that  there  is  a  right  to  be 
secured  or  protected,  or  a  wrong  to  be  redressed,  and  that  the 
right  of  action  arises  from  some  kind  of  contract,  or  is  founded 
upon  some  species  of  tort. 

When  a  right  is  to  be  enforced,  or  a  wrong  is  to  be  redressed 
through  the  aid  of  the  courts,  the  remedy  sought  must  be  such 
as  the  courts  have  power  to  grant.  These  remedies  have,  for  a 
great  length  of  time,  been  divided  into  such  as  are  legal  or  such 
as  are  equitable  in  their  nature.  Generally  it  may  be  said  that 
courts  of  law  administer  the  former,  and  courts  of  equity  the 
latter  kinds  of  remedies.  In  the  present  work,  all  these  various 
remedies  are  considered  and  explained,  but  without  discussing 
the  rules  of  practice  relating  to  them.  This  plan  secures  a  full 
discussion  of  the  right  and  of  the  remedy,  and  will  be  exhaust- 
ively treated. 

In  those  States  in  which  the  common-law  practice  has  been 


vi  PREFACE. 

retained,  and  tlie  courts  of  equity  are  separately  organized,  this 
work  will  be  as  well  adapted  as  though  no  code  of  procedure 
had  ever  been  enacted.  This  is  evident  from  the  fact  that  the 
rights  of  action  discussed  are  founded  upon  contracts  or  upon 
torts,  and  that  the  remedies,  whether  legal  or  equitable,  although 
fully  discussed,  have  still  left  the  mere  'practice  to  other  works. 

From  what  has  just  been  said,  it  will  be  evident  that  the  rules 
here  laid  down  can  be  as  well  enforced  under  a  code  as  under  a 
common -law  and  equity  system  of  practice.  In  those  particulars 
in  which  codes  of  procedure  affect  the  general  principles  relating 
to  contracts  or  torts,  or  those  relating  to  remedies,  whether  legal 
or  equitable,  the  changes  in  the  law  will  be  fully  and  carefully 
noted  and  explained. 

Any  general  law  work,  written  at  the  present  day,  must  be 
founded  upon  the  decisions  of  the  English  and  the  American 
courts.  The  extent  and  the  variety  of  the  subjects  discussed  by 
the  English  courts  have  always  given  them  a  value  in  this  coun- 
try, and  they  were  never  more  important  than  at  this  time.  On 
the  other  hand,  the  American  courts  are  daily  considering  ques- 
tions which  are  of  the  utmost  importance,  not  only  in  the  State 
where  the  questions  arose,  but  equally  so  in  all  the  other  States 
in  the  Union.  From  this  vast  storehouse  of  judicial  pre  cedents 
it  is  easy  to  find  authorities  in  support  of  every  principle,  and 
an  inexhaustible  variety  of  illustrations  applying  them  to  par- 
ticular cases.  The  general  rules  which  may  be  deduced  from 
authorities  so  numerous  and  so  reliable  will  be  found  to  be  gen- 
erally recognized  as  sound  law  in  all  the  American  courts.  If 
there  are  exceptional  cases  or  rules,  they  will  usually  be  familiar 
to  the  lawyer  who  is  interested  in  the  questions  to  be  discussed. 

When  difficult  questions  of  law  are  to  be  settled,  the  lawyer 
usually  resorts  to  the  best  digests  within  his  reach,  and  a  full 
collection  of  digests,  English  and  American,  will  be  pretty  cer- 
tain to  furnish  the  desired  information.  But  there  are  very  few 
such  collections  of  digests,  and  they  are  quite  expensive  if  pos- 
sessed. An  effort  is  made  in  tliis  work  to  meet  the  wants  of  the 
practitioner  in  most  of  the  cases  that  will  arise,  and  to  furnish 


PREFACE.  vii 

the  information  in  a  conwnient  form^  at  a  moderate  cost.  The 
arrangement  of  the  subjects,  alphabetically,  secures  all  the 
advantages  of  a  digest,  while  the  mode  of  presenting  the  princi- 
ples avoids  the  repetitions  unavoidable  in  all  digests.  This  is  a 
saving  of  both  labor  and  expense.  What  the  lawyer  needs,  is  a 
work  which  contains  nearly  every  important  title  in  the  law, 
and  that  each  illustration  of  such  a  principle  shall  he  sustained 
hy  reli^Me  authorities.  Such  a,  collection  of  principles  and 
authorities  is  equivalent  to  an  elementary  work  upon  every  title 
of  the  law  which  is  here  furnished.  It  will  he  remembered  that 
it  is  not  necessary  that  all  the  reported  cases  should  he  cited; 
it  will  he  sufficient  to  give  a  full  variety  of  principles  amply 
sustained  hy  the  authorities. 

Every  student  is  required  to  study  some  series  of  text-books. 
This  work  will  answer  every  purpose  of  a  text-book  while  pur- 
suing his  course  of  studies,  and  it  will  furnish  information  upon 
nearly  all  the  titles  of  the  law.  But  it  will  have  a  higher  value 
still  for  him,  because  when  he  starts  in  the  practice  of  his  pro- 
fession, this  will  be  one  of  the  first  works  needed  by  him,  and  he 
will  be  entirely  familiar  with  it,  and  ready  to  put  its  principles 
into  practice  as  cases  may  require  it. 

If  every  young  lawyer  had  a  full  collection  of  English  and 
American  digests  and  text-books,  he  would  have  more  informa- 
tion than  can  be  given  in  a  work  like  this.  A  moment's  reflec- 
tion will  show  the  cost  of  so  large  a  number  of  books.  To 
obviate  this  difficulty,  this  work  covers  most  of  the  titles  in  the 
digests,  or  the  subjects  discussed  in  most  of  the  text-books ;  and 
the  invariable  rule  is  to  present  all  of  the  important  principles, 
fortified  by  a  sufficient  number  of  reliable  authorities.  By  doing 
this,  the  general  rules  of  law  or  equity  are  furnished  at  a  very 
moderate  expense,  and  it  may  therefore  he  truly  said  that  H 
furnishes  the  young  lawyer  with  a  working  library. 

The  skilled  and  successful  veteran  in  the  profession  is  familiar 
with  much  of  the  law,  and  may  seldom  be  in  doubt  as  to  the  true 
rule  in  any  given  case.  But  while  all  this  may  be  conceded,  he 
may  be  called  upon  by  the  court  or  by  the  opposing  counsel  to 


viii  PREFACE. 

furnish  the  authorities  which  sustain  his  position.  This  may 
sometimes  be  easily  done,  but  there  is  no  practitioner,  however 
able,  who  does  not  sometimes  find  his  equal,  and  who,  at  times, 
is  not  somewhat  at  a  loss  to  meet  the  fully  prepared  points  that 
are  urged  by  experienced  counsel  against  his  position.  When- 
ever this  occurs,  every  available  case  is  pressed  into  service,  and 
this  collection  of  authorities  may  sometimes  prove  of  service,  if 
examined  and  used.  In  short,  what  the  ablest  lawyer  wants  is 
authorities  to  fortify  such  positions  as  he  feels  confident  are 
correct  in  principle  and  established  in  law. 

.  It  may  be  said,  generally,  that  the  whole  business  of  the  coun- 
try is  transacted  under  some  form  of  contract,  express  or  implied. 
There  are  sales,  and  hiring  and  letting  of  property.  There  are 
bargains  for  labor  and  services.  There  are  bills  and  notes,  bonds 
and  mortgages  and  other  evidences  of  debts  or  contracts.  And 
these  are  but  a  few  of  the  numerous  instances  that  could  be  men- 
tioned. And,  to  aid  in  an  examination  of  the  vast  number  of 
questions  arising  upon  contract,  most  of  the  important  titles  of 
the  law  have  been  included  in  the  plan.  An  examination  of  the 
volumes,  as  they  are  issued,  is  the  true  method  of  forming  a  cor- 
rect opinion  as  to  their  value. 

The  number  of  actionable  torts  is  very  great,  and  the  titles  of 
the  law  relating  to  such  actions  are  quite  familiar  to  the  profes 
sion.    It  is  enough  to  say  that  this  subject  has  received  the  most 
full  and  careful  consideration. 

The  common-law  forms  of  action  have  all  been  very  fully  dis- 
cussed, and  the  latest  authorities  cited. 

Suits  for  equitable  relief  are  of  daily  occurrence,  and  are 
steadily  increasing  in  importance.  The  entire  subject  will  be 
found  to  have  been  fully  treated. 

Every  available  defense  to  an  action  at  law  is  believed  to  be 
included  in  the  part  of  this  work  devoted  to  defenses. 

The  changes  in  the  law  have  rendered  these  defenses  much 
more  available  than  formerly.  And  it  is  now  common  to  inter- 
pose, by  way  of  equitable  defense,  matters  that  once  would  have 
been  the  subject  for  a  bill  in  equity.    This  subject  has  received 


PREFACE.  ix 

the  most  full  and  careful  attention,  and  will  be  found  very  useful 
to  the  practitioner. 

The  lawyer  in  active  practice  needs  no  work  so  much  as  one 
that  will  promptly  and  accurately  answer  the  various  and  import- 
ant questions  that  daily  arise.  Every  question  may  be  satisfac- 
torily answered  by  taking  time  to  examine  it  fully ;  but  time  and 
the  occasion  are  sometimes  too  pressing  to  permit  extended 
investigations  ;  and  it  is  then  that  a  reliable  and  extensive  collec 
tion  of  principles,  methodically  arranged,  will  render  the  most 
valuable  assistance. 

Every  lawyer,  of  any  experience,  knows  how  often  he  is  called 
upon  to  apply  his  legal  learning  to  some  case  or  question,  and 
that,  while  he  is  clear  as  to  the  principle,  he  cannot,  at  the  import- 
ant moment,  find  such  cases  as  he  desires  to  establish  it.  Again, 
he  may  feel  quite  confident  as  to  the  true  rule,  and  yet  have 
doubts,  so- that  he  is  unwilling  to  advise  or  to  act  without  the 
light  of  the  authorities.  So,  too,  he  may  have  an  impression 
that  the  law  is  opposed  to  his  side  of  the  case,  while  the  reverse 
is  actually  the  fact,  as  examination  proves.  It  is  in  these,  and 
similar  instances,  that  this  work  is  designed  to  meet  the  wants  of 
the  practitioner.  And  while  there  is  no  claim  that  every  ques- 
tion will  be  answered,  it  will  be  found  that  the  information  given 
is  very  great. 

The  perplexities  of  the  ofiice  are  generally  quite  sufiicient ;  but 
in  the  haste  of  the  trial  of  an  important  cause,  the  most  experi- 
enced lawyer  is  sometimes  greatly  in  doubt.  The  continued 
changes  in  the  aspect  of  the  case,  as  the  trial  progresses,  con- 
stantly present  new  and  unexpected  legal  questions,  which  must 
be  met  at  the  moment.  There  is  no  adequate  time  for  full  exami- 
nation, and  the  most  hasty  research  is  all  that  is  possible  ;  in 
such  a  case,  a  full  and  a  most  carefully-arranged  system  of  prin- 
ciples is  invaluable. 

This  work  has  been  written  with  this  object  constantly  in  view. 
And  it  is  not  merely  in  jury  trials  that  it  will  be  useful ;  for,  on 
trials  before  the  court,  before  referees  or  arbitrators,  or  upon  the 

B 


X  PREFACE. 

argument  of  legal  questions  at  special  or  general  terms,  the 
authorities  collected  will  be  equally  available. 

From  what  has  been  said,  it  will  be  seen  that  the  materials 
collected  and  arranged  will  serve  as  a  ready-made  brief  upon  a 
very  great  number  and  variety  of  questions. 

As  the  plan  of  the  work  proposes  to  give  the  greatest  number 
and  variety  of  legal  principles  in  the  least  practicable  space,  and 
arranged  in  the  most  systematic  order,  the  convenience  of  the 
work  is  sufficiently  evident.  It  will  not  be  bulky,  and,  therefore, 
it  may  always  be  conveniently  taken  wherever  it  may  be  useful 
to  the  owner.  By  means  of  the  general  arrangement  of  the  chap- 
ters, and  of  a  full  table  of  contents,  as  well  as  a  complete  index, 
any  principle  contained  in  the  work  may  readily  be  found. 

A  comparison  of  this  work  with  any  other,  or,  indeed,  with  all 
others,  is  all  that  is  required  to  determine  whether  it  is  not  only 
much  cheaper  in  a  pecuniary  point  of  view,  but  also  to  prove 
that  it  is  equally  useful  in  saving  the  time  of  the  lawyer,  which 
is  often  more  valuable  than  money. 

It  is  a  general  remark  that  the  laws  are  constantly  changing, 
and,  in  some  respects,  the  assertion  is  true.  But,  while  statutes 
change  the  rules  of  practice,  pleadings  and  evidence,  and  some- 
times the  general  rules  of  law,  it  will  be  found  that  the  great 
body  of  common-laio  and  eqiiity  principles  remain  unchanged, 
and  that  the  bulk  of  them  are,  in  their  very  nature,  unchangeable. 
This  proposition  is  self-evident  to  every  experienced  lawyer  or 
judge.  There  may  be,  and  there  actually  is,  a  constant  applica- 
tion of  legal  or  equitable  principles  to  new  cases,  and  the  great 
mass  of  the  English  and  American  reports  are  nothing  more  than 
cases  to  which  settled  legal  and  equitable  rules  were  applied  to 
particular  facts  and  circumstances,  either  separately  or  in  com- 
bination. The  reports  are  really  nothing  more  than  illustrations 
of  the  application  of  such  principles. 

Of  course  it  is  not  intended  to  say  that  there  are  no  new  cases ; 
for  new  inventions  and  improvements,  as  well  as  the  great 
changes  in  society,  may  sometimes  require  the  creation  of  a  new 
rule,  and  even  here  it  will  be  found  that  the  application  of  an  old 


PREFACE.  xi 

and  well-settled  principle  to  the  same  facts  or  circumstances  is 
usually  all  that  is  required.  The  importance  and  the  advantage 
of  this  permanence  of  principle  is,  that  a  work  loJiich  is  accur- 
ately loritten  will  be  reliable  for  a  long  time  in  all  its  general 
features,  and  lohile  new  cases  will  continue  to  add  new  illus- 
trations of  the  rules,  they  loill  not  overturn  or  impair  those 
already  established.  One  of  the  most  striking  proofs  of  this  fact 
is  found  in  the  constantly  increasing  volumes  o  ' '  Leading 
Cases,"  many  of  which  are  among  the  oldest  adjudications. 
They  are  simply  old  rules  with  new  illustrations  and  occasional 
modifications.  It  is  the  aim  of  this  work  to  select  and  furnish 
the  largest  practicable  collection  of  important  and  well-settled 
principles,  so  that  they  may  be  permanently  relied  on,  and  at 
the  same  time  to  furnish  the  largest  variety  of  useful  illustra- 
tions. 

A  collection  of  principles  which  have  been  settled  by  the  differ- 
ent courts  of  the  several  States  cannot  fail  to  extend  the  acquaint- 
ance of  the  reader  with  reference  to  the  adjudications  of  these 
courts.  Such  a  comparison  increases  the  general  knowledge  of 
the  student,  and  greatly  aids  the  lawyer  and  the  judge  in  dealing 
with  questions  presented  for  settlement.  The  constant,  the 
important  and  the  intimate  business  relations  existing  between 
the  citizens  of  the  different  States  require,  and  they  will  ulti- 
mately accomplish  a  very  general  harmony  in  all  legal  and 
equitable  rules  relating  to  commercial  transactions.  The  ten- 
dency is  toward  harmony  of  decisions  in  the  several  States.  The 
constant  reference  to  other  State  authorities,  and  the  careful 
examinations  of  the  grounds  upon  which  they  are  founded,  tend 
to  give  strength  to,  as  well  as  uniformity  in,  all  American 
decisions. 

The  English  authorities  have  so  long  held  an  important  place 
in  our  jurisprudence,  that  they  will  not  be  likely  to  be  over- 
looked. But  there  has  never  been  a  time  when  tliey  were  so 
nearly  like  our  own  laws  as  at  the  present  day.  It  is  not  now 
uncommon  to  find  American  authorities  cited  in  the  opinions  of 
English  judges ;  but  it  shows  the  general  tendency  toward  uni- 


xii  PREFACE. 

formity  in  the  establishment  of  general  legal  and  equitable  prin- 
ciples. No  American  work,  upon  general  principles,  can  prop- 
erly omit  due  reference  to  so  valuable  illustrations  as  may  be 
found  in  the  English  decisions.  And  they  have  accordingly  been 
resorted  to,  in  many  cases,  as  additional  authority  upon  new  or 
important  points.  Tlie  more  extensile  the  proper  research,  the 
more  reliable  the  conclusion  as  to  the  true  rule  to  he  followed. 

The  increasing  importance  and  the  growing  influence  of  the 
decisions  of  the  United  States  courts  have  been  very  generally 
observed.  In  some  cases  they  are  obligatory,  and  in  others  their 
influence  is  limited  to  their  value  as  expositions  of  general  prin- 
ciples, and  the  reason  upon  which  they  are  founded.  It  is  quite 
evident,  however,  that  their  effect  is  to  consolidate  and  harmon- 
ize the  decisions  of  the  courts  of  the  several  States.  A  mere 
allusion  to  this  subject  is  sufficient  to  show  the  importance  of 
including  many  of  these  decisions  in  any  general  legal  work. 

This  work  is  submitted  to  the  profession  in  the  belief  that  it 
will  be  found  useful  to  the  student,  the  lawyer  and  the  judge. 

Albany,  Nov.  21st,  1876. 

WILLIAM  WAIT. 


TABLE  OF  CONTENTS. 


PART  I.  Of  actions  and  defenses.  In  which  they  are  considered  gener- 
ally, and  in  their  relations  to  remedies,  whether  of  a  legal  or 
of  an  equitable  nature ;  or  whether  founded  upon  contracts 
or  upon  torts ;  upon  legal  duties  or  upon  equities. 

PAGE. 

Chapter  I.  Of  rights  and  remedies  and  of  the  nature  of  actions 1 

Title  I.  Of  contracts  and  of  torts 1 

Article  I.  Of  rights  of  persons  and  property  in  general 1 

Section  1.  Some  general  considerations 1 

Section  2.  Of  contracts  in  general 3 

Section  3.  Of  torts  in  general 4 

Title  II.  Of  the  nature  of  actions 5 

Article  I.  Of  the  necessity  for  actions,  and  of  their  origin 5 

Section  1.  Of  laws ;  their  nature  and  objects 5 

Section  2.  Nature  and  definition  of  actions 9 

Title  III.  Of  some  of  the  principal  distinctions  between  legal  actions 

and  equitable  suits 12 

Article  I.  Of  legal  actions 12 

Section    1.   In  general 12 

Section    2.  Legal  actions  relate  to  some  act  done  or  omitted,  13 

Section    3.  Compensation  in  damages,  or  not  at  all 14 

Section    4.  Aifords  no  relief  outside  of  the  general  rule ....  14 

Section    5.  Do  not  compel  specific  performance  of  contracts,  15 

Section    6.  Do  not  prevent  the  commission  of  wrongs 15 

Section    7.  Not  adapted  to  complicated  equitable  cases 16 

Section    8.  Powers  of  the  court  terminate  with  the  judg- 
ment and  its  enforcement 16 

Section    9.  Extension  of  remedies  by  common  law 16 

Section  10.  Exceptions  to  general  legal  rules 17 

Section  11.  Tries  questions  of  fact  by  a  jury 18 

Section  12.  Legal  remedies  may  exist  and  yet  be  insufiScient,  19 

Title  IV.  Of  equitable  suits 20 

Article  I.  General  principles 20 

Section  1.  Courts  of  equity  act  on  the  person  independently 

of  damages  as  a  remedy 20 

Section  2.  Equity  compels  the  performance  of  acts  specific- 
ally    21 

* 


XIV  TABLE  OF  CONTENTS. 

Part  I,  Chap,  I  —  Of  rights  and  remedies  and  of  the  nature  of  actions  —  Cont.     page. 

Section    3.  Equity  restrains  the  commission  of  wrongful  acts,  23 

Section  4.  Equity  generally  acts  without  the  aid  of  a  jury . .  24 
Section    5.  Relief  is  granted  or  refused  by  courts  of  equity 

as  justice  requires 24 

Section    6.  Grants  relief  when  the  law  does  not 25 

Section    7.  Equity  is  governed  by  settled  rules  and  principles,  26 

Section    8.  Equity  devises  new  remedies 27 

Section    9.  Mode  of  relief  differs  more  than  principles  of 

law 28 

Section  10.  General  rules  and  maxims  of  equity 28 

Title  V.  The  union  of  legal  and  of  equitable  remedies 29 

Article  I.  General  principles 29 

Section  1.  Mode  of  uniting  the  two  systems 29 

Section  2.  Principles  of  law  and  equity  unchanged 30 

Title  VI.  Of  the  right  of  action 35 

Article  I.  Is  a  remedy  given  by  law 35 

Section    1.  In  general 35 

Section    2.  Are  there  sufficient  existing  facts 36 

Section    3.  Actions  for  injuries  to  person  or  personal  rights,  37 

Section    4.  Actions  relating  to  property,  real  or  personal.  . .  37 

Section    5.  Actions  founded  upon  contracts 38 

Section    6.  Actions  founded  upon  torts 38 

Section    7.  Is  there  an  existing  right  of  action 40 

Section    8.  Cumulative  or  exclusive  remedies  by  action 42 

Section    9.  Illegality  of  ground  of  action 43 

Section  10.  Of  leave  to  bring  or  defend  actions 43 

Section  11.  Of  the  parties  to  an  action 43 

Section  12.  Of  the  pleadings  in  an  action 44 

Section  13.  Of  the  evidence  in  an  action 44 

Title  VII,  Of  the  jurisdiction  of  actions 44 

Article  I.  In  general 44 

Section  1.  Definition  and  incidents 44 

Article  II.  Common-law  jurisdiction 46 

Section  1.  Nature  and  origin 46 

Article  III.  Constitutional  and  statutory  provisions 46 

Section  1.  In  general 46 

Article  IV.  Jurisdiction  of  State  courts 47 

Section  1.  In  general 47 

Article  V.  Superior  and  inferior  courts 48 

Section  1.  In  general • 48 

Article  VI,  Exclusive  or  concurrent  jurisdiction 48 

Section  1,  In  general , 48 

Article  VII.  Jurisdiction  of  subject-matter 49 

Section  1.  In  general 49 

Article  VIII.  Jurisdiction  of  the  person 50 

Section  1.  In  general 50 


TABLE  OF  CONTENTS.  xv 

Part  I,  Chap.  I  —  Of  rights  and  remedies  and  of  the  nature  of  actions  —  Cont.    page. 

Article  IX.  DisquaUfication  of  judges 51 

Bection  1.  In  general 51 

Article  X.  Jurisdiction  in  special  cases 51 

Section  1.  In  general 51 

Title  VIII.  Of  remedies  without  action 52 

Article  I.  Of  preventive  measures 52 

Section  1.  In  general 52 

Article  II.  Defense  by  resistance 52 

Section  1.  In  general 52 

Article  III.  Defense  of  the  person 53 

Section  1.  In  general 53 

Article  IV.  Defense  of  personal  property 53 

Section  1.  In  general 53 

Article  V.  Defense  of  real  property 54 

Section  1.  In  general 54 

Article  VI.  Defense  of  others 55 

Section  1.  In  general 55 

Article  VII.  Apprehending  criminals  and  vrrong-doers 56 

Section  1.  In  general 56 

Article  VIII.  Resistance  of  process,  escapes,  rescues,  etc 57 

Section  1.  In  general 57 

Article  IX.  Recaption  of  person  or  property 58 

Section  1.  In  general 58 

Section  2.  Recaption  of  the  person  of  a  relative 58 

Section  3.  Recaption  of  personal  property 58 

Section  4.  Recaption  or  re-entry  on  real  property 59 

Article  X.  Abatement  of  nuisance 60 

Section  1.  In  general 60 

Section  2.  Private  nuisance  61 

Section  3.  Public  nuisances 62 

Article  XI.  Distress  and  seizure  of  cattle 62 

Section  1.  In  general 62 

Section  2.  Damage  feasant 62 

Article  XII.  Retainer,  remitter  and  lien 64 

Section  1.  Retainer 64 

Section  2.  Remitter 64 

Section  3.  Lien 65 

Article  XIII.  Redress  by  joint  acts  to  the  parties 66 

Section  1.  In  general 66 

Section  2.  Accord 66 

Section  3.  Arbitration 66 

Article  XIV.  Redress  by  operation  of  law 66 

Section  1.  In  general 66 

Section  2.  Set-off 66 

Section  3.  Marriage  of  debtor  and  creditor 67 


xvi  TABLE  OF  CONTENTS. 

Part  I,  Chap.  I  —  Of  rights  and  remedies  and  of  the  nature  of  actions  —  Cont.    page. 
Article  XVI.  Cautions  in  relation  to  resorting  to  these  remedies 

without  action 67 

Section  1,  In  general    67" 

Title  IX.  Of  extraordinary  remedies  which  are  not  usually  termed 

actions 68 

Article  I,  Of  mandamus 68 

Section  1,  In  general 68 

Article  II.  Of  injunctions 68 

Section  1.  In  general 68 

Article  III.  Of  prohibition 68 

Section  1.  In  general 68 

Article  IV.  Of  quo  warranto 69 

Section  1.  In  general 69 

Article  V.  Of  certiorari ^ 69 

Section  1.  In  general 69 

Chapter  II.  Of  some  of  the  general  principles  of  the  law  relating  to  ac- 
tions founded  upon  contract,  upon  equities,  upon  legal 

duties,  or  upon  torts,  or  relating  to  defenses  to  actions ....  70 

Title  I.  Of  some  of  the  general  principles  of  contracts 70 

Article  I.  Definition 70 

Section  1.  In  general 70 

Article  II.  Of  the  different  kinds  of  contracts  and  of  their  requi- 

«  sites    . .  72 

Section  1.  Of  contracts  of  record 72  , 

Section  2.  Of  sealed  contracts  or  specialties 72 

Section  3.  Of  simple  or  unsealed  contracts 72 

Section  4.  Of  express  or  implied  contracts 72 

Section  5.  Of  executed  and  of  executory  contracts 74- 

Section  6.  Of  entire  and  divisible  contracts 75 

Section  7.  Of  contracts  absolute  or  conditional 76 

Section  8.  Of  joint  and  several  contracts 76 

Article  III.  Of  the  parties  to  contracts 77 

Section    1.  Of  contracts  made  in  person »  77 

Section    2.  Of  contracts  by  agents 77 

Section    3.  Of  contracts  by  partners 78 

Section    4.  Of  contracts  by  executors  and  administrators. . .  78 

Section    5.  Of  contracts  by  trustees 78 

Section    6.  Of  guardian  and  ward 79 

Section    7.  Of  contracts  by  or  with  corporations 79 

Section    8.  Of  joint-stock  companies V9 

Section    9.  Of  contracts  by  auctioneers 79 

Section  10.  Of  contracts  by  brokers 79 

Section  11.  Of  contracts  by  factors 80 

Section  12.  Of  contracts^by  shipmasters 80 

Section  13.  Of  the  change  of  parties  by  novation  or  substi- 
tution   80 


TABLE  OF  CONTENTS.  xvii 

Part  I,  Chap    II  —  General  principles  of  the  law,  etc.  —  Continued.  page. 

Section  14.  Of  the  change  of  parties  by  assignment .  ...     81 

Article  IV.  Of  the  assent  of  the  parties  to  a  contract 82 

Section  1.  Of  the  capacity  to  assent 82 

Article  V.  What  constitutes  a  valid  assent  to  a  contract 83 

Section  1.  Of  assent  in  general 83 

Section  2.  Assent  how  affected  by  a  mistake  as  to  the  law. .  84 

Section  3.  Assent  how  affected  by  mistake  of  fact 85 

Section  4.  Of  assent  obtained  by  duress 85 

Section  5.  Of  assent  given,  or  contracts  made  by  letters  ...  86 

Section  6.  Of  assent  given,  or  contracts  made  by  telegraph. .  87 

Article  VI.  Of  the  consideration  of  contracts ."^ 90 

Section    1.  A  consideration  is  necessary 90 

Section    2.  Kinds  of  consideration 90 

Section    3.  Benefit  or  injury  as  a  consideration 91 

Section    4.  Of  the  adequacy  of  the  consideration 93 

Section    5.  Prevention  of  litigation  as  a  consideration 95 

Section    6.  Forbearance  as  a  consideration 96 

Section    7,  Assignment  of  a  debt  or  a  right  of  action  arising 

upon  contract 98 

Section    8.  Assignment  or  sale  of  property 99 

Section    9.  Services  rendered,  rewards  offered 99 

Section  10.  Trust  and  confidence  as  a  consideration 101 

Section  11.  Mutual  promises  as  a  consideration 102 

Section  12.  Considerations   moving  from  third   persons   or 

strangers 103 

Section  13.  Gratuitous  promises ;  subscriptions  and  contribu- 
tions   104 

Section  14.  Illegality  of  consideration 106 

Section  15.  Impossible  considerations 106 

Section  16.  Considerations  void  in  part 107 

Section  17.  Mere  moral  consideration    107 

Section  18.  Of  executed  considerations 109 

Section  19.  Of  executory  considerations 110 

Section  20.  Of  concurrent  considerations 110 

Section  21.  Of  continuing  considerations 110 

Section  22.  Failure  of  consideration Ill 

Section  23.  Impeaching  consideration Ill 

Section  24.  Effect  of  a  seal  upon  a  consideration Ill 

Article  VII.  Of  the  forms  of  contracts 112 

Section  1.  Of  writing  contracts 112 

Section  2.  Statute  of  frauds 112 

Section  3.  Of  the  contents  of  a  written  contract 112 

Section  4.  Of  certainty  in  contracts 113 

Section  5.  Signature  to  contract 113 

Section  6.  Attestation  of  contract 113 

-  -                        Section  7.  Recording  contracts,  etc 114 

O 


xviii  TABLE  OF  CONTENTS. 

Part  I,  Chap.  II  —  General  principles  of  the  law,  etc. —  Continued.  page. 

Article  VIII.  Of  the  construction  of  contracts 114 

Section    1.  In  general 114 

Section    2.  Construction  of  contracts  is  for  the  court 114 

Section    %.  Construction,  when  for  a  jury 115 

Section    4.  The  construction  is  the  same  at  law  or  in  equity,  116 

Section    5.  The  intention  of  the  parties  controls 116 

Section    6.  Situation  of  parties,  and  evidence  of  surround- 
ing circumstances 118 

Section    7.  Construction  to  be  reasonable 119 

Section    8.  Construction  to  be  liberal 120 

Section    9.  Construction  to  be  favorable 120 

Section  10.  Words   construed,   according   to   their  popular 

***  sense 121 

Section  11.  Technical  words,  how  construed 122 

Section  12.  The  construction  to  be  upon  the  whole  contract,  122 

Section  13.  Inconsistent  clauses 123 

Section  14.  Against  grantor,  promisor,  etc 124 

Section  15.  General  words 125 

Section  16.  Grammatical  rules,  how  applied 125 

Section  17.  Transposition  of  words  or  clauses 126 

Section  18.  Presumptions,  in  relation  to  contracts 127 

Section  19.  Contracts,  partly  printed  and  partly  written ....   127 

Section  20.  Effect  of  custom  or  usage 128, 

Section  21.  Of  the  law  of  place 129 

Section  22.  Of  time  of  contract 130 

Section  23.  Of  parol  evidence,  to  explain  or  contradict  con- 
tracts     131 

Title  II.  Of  actions  founded  upon  torts 131 

Article  I.  In  general 131 

Section    1.  Rules,  definitions  and  illustrations 131 

Section    2.  Novelty  of  actions 140 

Section    3.  Of  fictitious  or  wager  suits 141 

Section    4.  Illegal  or  wrongful  acts  142 

•  Section    5.  Rightful  acts  no  ground  of  action 143 

Section    6.  Legislative  authority  for  acts  done 145 

Section    7.  Consent  of  injured  party 146 

Section    8.  Demand  or  notice  before  suit  brought 146 

Section    9.  Splitting  demands 146 

Section  10,  Of  damages  not  caused  by  wrongs  not  actionable,  146 
Section  11.  Of  wrong  without  actual  damage,  though  action- 
able    147 

Section  12.  Damages,  when  too  remote  and  when  not 148 

Title  III.  Of  principles  relating  to  suits  in  equity 150 

Article  I.  Rules  and  illustrations 150 

Section  1.  Courts  of  equity  do  not  act  when  a  legal  remedy 

exists 150 

Section  2.  Equity  follows  the  law 152 


TABLE  OF  CONTENTS.  xix 

Part  I,  Chap.  II  —  General  principles  of  the  law,  etc. — Continued.  page. 

Section  3.  Where  both  parties  are  equally  in  the  wrong,  the 

court  will  not  interfere 153 

Section  4.  Where  the  equities  are  equal,  the  law  prevails . . .  154 

Section  5.  Prior  in  time,  prior  in  right 155 

Section  6.  Equality  is  equity 155 

Section  7.  He  who  seeks  equity  must  do  equity 155 

Section  8.  Equity  regards  as  done  what  ought  to  be  done . .  156 

Section  9.  Union  of  law  and  equity 157 

Title  IV.  Of  some  of  the  general  principles  relating  to  the  defense  of 

actions  at  law,  or  of  suits  in  equity 157 

Article  I.  Rules  and  illustrations 157 

Section  1.  Of  defenses  in  general 157 

Section  2.  Of  pleas  or  answers  in  abatement 158 

Section  3.  Pleas  or  answers  in  bar 158 

Section  4.  Demurrer 158 

Section  5.  Deny  the  facts 159 

Section  6.  Admit  the  facts  alleged,  but  set  up   matter  in 

avoidance 159 

Section  7.  Counterclaim 159 

Section  8.  Set-oflf 159 

Chapter  III.  Of  actions  founded  upon,  or  relating  to,  accidents 160 

Article  I.  Actions  at  law 160 

Section  1.  When  an  action  hes 160 

Section  2.  When  no  action  lies 160 

Article  II.  Actions  in  equity,  and  when  an  action  lies 162 

Section  1.  In  general 162 

Section  2.  Lost  instruments  under  seal 163 

Section  3.  Lost  notes  negotiable 165 

Section  4.  Forfeitures 167 

Section  5.  Executors    and    administrators,    errors    in   pay- 
ments, etc 168 

Section  6.  Execution  of  powers 169 

Section  7.  Transfer  of  bills  and  notes 171 

Article  III.  When  no  action  lies 171 

Section  1.  Accident  preventing  fulfillment  of  contract 171 

Section  2.  Covenant  to  pay  rent 171 

Section  3.  Negligence  of  party 172 

Section  4.  Equal  equities 172 

Section  5.  Bona  fide  purchaser 172 

Chapter  4.  Of  actions  relating  to,  or  founded  upon,  an  accounting 173 

Article  I.  Action  of  account  at  law 173 

Section  1.  When  the  action  lies 173 

Section  2.  When  the  action  does  not  lie 173 

Article  II.  Actions  of  account  in  equity 174 

Section    1.  In  general 174 

Section    2.  No  remedy  at  law 174 

Section    3.  Mutual  accounts .  * 175 


XX  TABLE  OF  CONTENTS. 

Part  I,  Chap.  IV  —  Of  actions  founded  upon  an  accounting —  Continued.  page. 

Section    4.  Appropriation 176 

Section    5.  Agency 178 

Section    6.  Apportionment 180 

Section    7.  Contribution 182 

Section    8.  Liens 186 

Section    9.  Rents  and  profits 186 

Section  10.  Waste 187 

Article  II.  When  no  action  can  be  maintained 187 

Section  1.  In  general .^ 187 

Section  2.  Defenses  to  action 188 

Chapter  V.  Of  actions  relating  to  accounts,  or  to  an  account  stated 189 

Article  I.  Actions  upon  or  relating  to  accounts 189 

Section  1.  What  is  a  matter  of  account 189 

Section  2.  What  is  not  a  matter  of  account 189 

Section  3.  Books  of  account,  how  kept 190 

Section  4.  Books,  how  proved 190 

Article  II.  Actions  upon  or  relating  to  an  account  stated 191 

Section  1.  An  account  stated 191 

Section  2.  Rendering  an  account 192 

Section  3.  Mutual  agreements 192 

Section  4.  Admissions,  etc 193 

Section  5.  No  objection  made 193 

Section  6.  Conclusiveness 195 

Section  7.  Opening  account 196 

Chapter  VI.  Of  an  action  for  adultery 199 

Article  I.  Of  the  action  in  general 199 

Section  1.  Marriage  must  be  proved 199 

Section  2.  The  husband  must  be  without  fault 199 

Section  3.  Separation  by  agreement 200 

Section  4.  Ill  treatment  of  wife .    200 

Section  5.  Husband  living  in  adultery 201 

Section  6.  Condonation 201 

.     Section  7.  Proof  of  the  ofifense 201 

Section  8.  Damages 203 

Chapter  VII.  Advancement 205 

Article  I.  General  rules  relating  to  advancement 205 

Section    1,  What  is 205 

Section    2.  What  is  not  advancement 206 

Section    3.  In  what  made 207 

Section    4.  To  whom  made 207 

Section    5.  From  whom 207 

Section    6,  Value  of 208 

Section    7.  Presumptions 208 

Section    8.  Parol  evidence 209 

Section    9.  Hotchpot 210 

Section  10.  Failure  of 212 

Section  11.  Interest  on 212 


TABLE  OF  CONTENTS.  xxi 

Part  I  —  Of  actions  and  defenses  —  Continued.  page. 

Chaptbr  "VIII.  Agency 218 

Title  I.  Of  the  general  principles  relating  to  principal  and  agent 213 

Article  I.  Of  the  nature  of  an  agency 213 

Section  1.  In  general 213 

Section  2.  Who  may  be  a  principal 214 

Section  3.  Who  may  be  an  agent 214 

Section  4.  An  agent  cannot  delegate  his  authority 215 

Section  5.  Of  a  general  or  a  special  agency 216 

Article  II.  Of  the  different  kinds  of  agents 217 

Section  1.  In  general 217 

Article  III.  Of  the  appointment  of  agents 1 218 

Section  1.  How  appointed 218 

Section  2.  By  deed  or  sealed  instrument 218 

Section  3,  By  parol,  or  by  an  unsealed  writing  219 

Section  4.  By  corporations 219 

Section  5.  Express  or  implied  authority 219 

Article  IV.  Of  the  nature  and  extent  of  an  agent's  authority . . .   220 

Section    1.  In  general 220 

Section    2.  An   agent's   authority   includes   the   usual    and 

necessary  means  of  executing  it 221 

Section    3.  Authority,  when  limited 224 

Section    4.  Notice  of  extent  of  agent's  authority 226 

Section    5.  Private  instructions  to  agent 227 

Section    6.  Ambiguous  authority 228 

Section    7.  Usage  or  custom 228 

Section    8.  Parol  evidence  to  enlarge  authority 229 

Section    9.  Acts  to  be  done  in  a  foreign 'country  or  state, . .   230 

Section  10.  Extent  of  authority,  how  far  implied 230 

Section  11.  Of  notice  to  agents 231 

Section  12.  Powers  on  extraordinary  occasions 232 

Section  13.  Ratification  of  assumed  authority 232 

Section  14.  Agent's  declarations  do  not  prove  authority 234 

Article  V.  Of  the  duties  of  agents 235 

Section    1.  In  general 235 

Section    2.  Agents  must  act  in  person 235 

Section    3.  As  to  made  of  executing  the  authority 235 

Section    4.  Agency  coupled  with  an  interest 239 

Section    5.  Agent  must  act  within  the  scope  of  his  authority,  240 

Section    6.  What  diligence  and  skill  required 240 

Section    7.  Incidental  duties  of  agents 241 

Section    8.  Instructions  to  agents 242 

Section    9.  Effect  of  usage 243 

Section  10.  Of  sub-agents  or  substitutes 243 

Section  11.  Losses,  by  whom  borne 244 

Section  12.  Adverse  interest  by  agent 245 

Article  VI.  Of  the  liabilities  of  agents  to  their  principals 249 

Section  1.  In  general 249 


xxii  TABLE  OF  CONTENTS. 

Part  I,  Chap.  VIII  ^ — Agency  —  Continued.  page. 

Section  2.   Accounting  by  agents 252 

Article  VII.  Defenses  of  agents  against  principals 255 

Section  1.  In  general 255 

Section  2.  Illegality  as  a  defense 255 

Section  3.  No  damage  to  principal 255 

Section  4.  Necessity 256 

Section  5.  Ratification 256 

Article  VIII.  Liability  of  agents  to  third  persons,  on  contracts. .  256 

Section  1.  A  known  agent  is  not  responsible 256 

Section  2.  Agent  assuming  liability 256 

Section  3.  Agent  exceeding  his  authority 257 

Section  4.  Not  disclosing  agency 258 

Section  5.  Agent's  liability  for  a  foreign  principal 259 

Section  6.  Liability  of  agent  who  contracts  in  his  own  name,  259 

Article  IX.  Of  the  liability  of  public  agents  upon  contracts  made 

by  him 260 

Section  1.  The  general  rule 260 

Section  2.  When  a  public  agent  is  not  liable 261 

Section  3.  "When  a  public  agent  is  liable  upon  contracts  ....  262 

Section  4.  Liability  of  government  or  principal 263 

Article  X.  Liability  of  agents  for  torts 263 

Section  1.  Of  their  liability  in  general 263 

Section  2.  When  agent  is  liable  to  third  persons 264 

Section  3.  Agent  when  not  liable  for  torts 266 

Section  4.  Principal  not  liable  for  agent's  willful  torts 266 

Section  5.  Liability  of  public  agents  for  torrs 267 

Article  XI.  Of  the  rights  of  agents  in  regard  to  their  principals,  268 

Section  1.  In  general 268 

Section  2.  Compensation  of  agent 268 

Section  3.  Service  before  payment 270 

Section  4.  Faithful  discharge  of  duty  before  payment 271 

Section  5.  Adverse  interests,  or  acting  for  two  parties 271 

Section  6.  Reimbursement  and  indemnity  of  agents  .  ......  271 

Section  7.  Loss  or  damage  sustained  for  principal 272 

Section  8.  Illegal  acts 273 

Section  9.  Power  of  agent  to  pledge  goods 273 

Article  XII,  Of  the  lien  of  agents 273 

Section  1.  Of  an  agent's  lien  in  general 273 

Section  2.  Particular  liens 273 

Section  3.  General  liens 274 

Section  4.  Lien,  how  acquired 274 

Section  5.  Upon  what  demands  a  lien  may  be  had 275 

Section  6.  Waiver  of  lien,  or  of  right  to  it 276 

Section  7.  Enforcing  lien 277 

Section  8.  Lien  of  sub-agent 277 

Article  XIII.  Rights  of  agents  as  to  third  persons 27S 

Section  1.  Rights  in  general 278 


TABLE  OF  CONTENTS.  xxiii 

Part  I,  Chap.  VIII  —  Agency  —  Continued.  page. 

Section  2.  Rights  of  agent  to  sue  in  his  own  name 278 

Section  3.  Principal  may  control  actions 281 

Section  4.  Agent  may  sue  for  tort  of  third  person 281 

Article  XIV.  Rights  of  principals  against  third  persons 281 

Section  1.  In  general 281 

Section  2.  Rights  of  principal  on  agent's  contract 282 

Section  3.  Payment  to  agents 282 

Section  4.  Payment  by  agents  for  principals 284 

Section  5.  Torts  to  property  in  agent's  hands 285 

Section  6.  Wrongful  sales  or  transfers  by  agent 285 

Article  XV.  Rights  of  third  persons  against  principals 285 

Section  1.  In  general 285 

Section  2.  Rights  of  third  persons  on  agent's  contracts 286 

Section  3.  Principal's  liability  for  torts  of  agent 287 

Article  XVI.  Termination  of  an  agent's  authority 289 

Section  1.  In  general 289 

Section  2.  Revocation  of  authority  by  principal 289 

Section  3.  Mode  of  revocation 289 

Section  4.  Renunciation  of  agent 290 

Section  5.  Termination  by  operation  of  law 290 

Section  6.  Revocation  by  death  of  principal -.- 290 

Section  7.  Revocation  by  death  of  agent 291 

Chapter  IX.  Ancient  lights 292 

Title  I.  G-eneral  rules  and  principles 292 

Article  I.  Of  the  English  rule 292 

Section  1.  Right  by  prescription 292 

Section  2.  By  statute  in  England 293 

Section  3.  Implied  grant 293 

Article  II.  Of  American  cases  similar  to  the  EngUsh  rule 294 

Section  1.  As  to  ancient  lights 294 

Section  2.  As  to  implied  grant 295 

Article  III.  Of  the  American  rule 296 

Section  1.  In  general 296 

Chapter  X.  Animals 298 

Title  I.  Of  the  ownership  of  animals,  and  of  the  rights,  duties  and  lia- 
bilities of  their  owners  or  possessors 298 

Article  I.  Of  the  ownership  of  animals 298 

Section  1.  Definition,  and  general  principles 298 

Section  2.  What  animals  are  subjects  of  property 298 

Section  3.  What  animals  are  not  subjects  of  property 299 

Section  4.  Title  to  animals,  how  acquired 300 

Section  5.  Title,  how  transferred  or  lost 302 

Article  II.  Rights  of  owners  or  possessors  of  animals 302 

Section  1.  Rights  of  the  owner  of  animals 302 

Section  2.  Rights  of  the  possessor  of  animals 302 

Section  3.  Wrongfully  taking  animals 302 


XXIV  TABLE  OF  CONTENTS. 

Part  I,  Chap.  X  —  Animals  —  Continued.  page. 

Section  4.  Wrongful  destruction  of  animals  ...    303 

Section  5.  Wrongful  injury  of  animals 305 

Section  6.  Wrongful  conversion  of  animals 306 

Section  7.  Rights  as  to  mode  or  place  of  keeping 306 

Article  III.  Duties  and  liabilities  of  owners  or  possessors  of  ani- 
mals   307 

Section    1.  Generally,  when  owner  liable 307 

Section    2.  Injuries  to  persons  by  domestic  animals 308 

Section    3.  Injuries  to  animals  by  domestic  animals 309 

Section    4.  Injuries  by  wild  animals 310 

Section    5.  Knowledge  by  owner,  of  vicious  habits 311 

Section    6.  Agent's  knowledge  of  viciousness. . '. 316 

Section    7.  Liabihty  of  possessor  of  animals 316 

Section    8.  Injuries  by  trespassing  animals 316 

Section    9.  Communicating  diseases 317 

Section  10.  Injuries  by  animals  of  different  owners 318 

Section  11.  Liabihty  by  statute 319 

Section  12.  Contributory  neghgence 320 

Article  IV.  Rights  of  third  persons 320 

Section  1.  To  kill  dangerous  animals 320 

Section  2.  Abating  a  nuisance 320 

Section  3.  To  protect  his  own  animals 320 

Section  4.  To  protect  his  property  from  trespass 321 

Chapter  XI.  Annuities 323 

Article  I.  General  rules  relating  to  annuities 323 

Section  1.  Nature  of  an  annuity 323 

Section  2.  How  created 324 

Section  3.  Payment  of 325 

Section  4.  Enforcement  of 325 

Section  5.  How  determined 326 

Chapter  XII.  Application  of  purchase-money 327 

Title  I.  General  rules  relating  to  the  application  of  purchase  money. .  327 
Article  I.  Purchaser,  in  what  cases  bound  to  see  the  application 

of 327 

Section  1.  General  rule  as  to , 327 

Section  2.  Where  the  trust  is  specific 327 

Section  3.  Where  the  trust  is  general  and  indefinite 328 

Section  4.  Collusion  or  fraud  of  purchaser 328 

Section  5.  Purchaser  of  real  estate 329 

Section  6.  Where  discretion  is  to  be  exercised  by  trustee 330 

Section  7.  Where  the  testator  reposes  the  trust  of  applying 

the  money  in  the  trustee 330 

Chapter  XIII.  Assault  and  battery   332 

Article  I.  Of  assault  and  battery 332 

Section  1.  What  is  an  assault 332 

Section  2.  What  is  not  an  assault 333 


TABLE  OF  CONTENTS.  xxv 

Part  I,  Chap.  XIII  —  Assault  and  battery  —  Continued.  page. 

Section  3.  What  is  a  battery 335 

Section  4,  Wounding  and  mayhem 336 

Article  II,  Of  defenses,  excuses  and  justification 337 

Section    1.  Accident 337 

Section    2.  Self-defense 337 

Section    3.  Defense  of  another 338 

Section    4.  Defense  of  land,  house,  etc 339 

Section    5.  Defense  of  personal  property 340 

Section    6.  Preserving  the  peace,  etc. 341 

Section    7.  Provocation 342 

Section    8.  Expulsion  by  innkeepers 343 

Section    9.  Removing  from  religious  meetings 343 

Section  10.  Ejecting  from  public  conveyances 344 

Section  11.  Consent 344 

Section  12.  Damages  in  general 345 

Section  13.  Aggravation  of  damages 345 

Section  14.  Mitigation  of  damages 346 

Chapter  XIV.  Assets,  administration  of 348 

Article  I.  General  rules  relating  to  administration  of 348 

Section  1.  What  are  to  be  deemed  assets 348 

Section  2.  Legal'  assets 348 

Section  3.  Equitable  assets 349 

Section  4.  Principles  of  distribution 350 

Section  5.  Marshaling  assets 352 

Chapter  XV.  Assignments 355 

Article  I.  Of  the  general  rules  relating  to  assignments 355 

Section  1.  Assigjaments  in  general 355 

Article  II.  What  is  assignable .    .  355 

Section  1.  In  general 355 

Section  2.  Lands,  and  interests  in  lands 356 

Section  3.  Contracts 357 

Section  4.  Money  due,  or  to  become  due 359 

Section  5.  Causes  of  action 359 

Article  III.  What  is  not  assignable 361 

Section  1.  In  general 361 

Article  IV.  Form  and  mode  of  assigning 362 

Section  1.  In  general 362 

Article  V.  Validity  of  assignment  as  to  assignor's  creditors 364 

Section  1.  In  general 364 

Article  VI.  Rights  of  assignee 364 

Section  1.  In  general 364 

Article  VII.  Liabilities  of  assignee ...  366 

Section  1.  In  general 366 

Article  VIII.  Rights  of  assignor 366 

Section  1.  In  general 366 


xxvi  TABLE  OF  CONTENTS. 

Part  I,  Chap,  XV  —  Assignments —  Continued.  page. 

Article  IX.  Liability  of  assignor 367 

Section  1.  In  general 367 

Article  X.  Action  at  law  by  assignee 368 

Section  1.  In  general 368 

Article  XI.  Action  in  equity  by  assignee 369 

Section  1.  In  general 369 

Article  XII.  Fraudulent  assignments 371 

Section  1.  In  general 371 

Chapter  XVI.  Assumpsit 373 

Title  I.  Of  the  action  of  assumpsit,  and  when  it  may  or  may  not  be 

maintained 373 

Article  I.  Nature  and  definition  of 373 

Section  1.  In  general 373 

Section  2.  Promise 374 

Section  3.  Consideration 374 

Article  II.  Special  or  general  assumpsit 375 

Section  1.  Special  assumpsit  375 

Section  2.  G-eneral  assumpsit  ...    376 

Article  III.  When  the  action  lies 377 

Section  1.  In  general 377 

Section  2.  General  mcZeJiia^Ms  assumpsit,  when  proper 382 

Section  3.  When  special  assumpsit  lies 385 

Article  IV.  When  the  action  does  not  lie 386 

Section  1.  In  general 386 

Section  2.  When  indebitatus  assumpsit  does  not  lie 388 

Article  V.  Who  may  bring  the  action 390 

Section  1.  In  general  . . .  .* 390 

Article  VI.  Of  the  pleadings  in  the  action   j 392 

Section  1.  The  declaration,  in  general 392 

Section  2.  Averments 393 

Section  3.  What  may  be  pleaded  in  defense 396 

Section  4.  The  general  issue .... 396 

Section  5.  Special  pleas 397 

Article  VII.  Of  the  evidence  in  the  action 398 

Section  1.  Under  the  common  counts 398 

Section  2.  Under  special  counts 399 

Section  3.  Under  the  general  issue 400 

Section  4.  Under  plea  of  payment 401 

Section  5.  Incompetent  evidence 401 

Section  6.  Variance 403 

Article  VIII.  Of  the  damages  in  the  action 404 

Section  1.  In  general 404 

Article  IX.  Election  between  assumpsit  and  other  actions 405 

Section  1.  Plaintiff  may  waive  tort  and  bring  assumpsit 405 

Section  2.  Election  in  other  cases  ....    409 


TABLE  OF  CONTENTS.  xxvii 

Part  I  —  Of  actions  and  defenses  —  Continued.  page. 

Chapter  XVII.  Attachment 410 

Title  I.  Of  the  remedy  by,  in  general 410 

Article  I.  Nature  of  remedy 410 

Section  1.  Origin  of 410 

Section  2.  Kemedy  in  the  United  States 411 

Article  II.  In  what  actions  allowed 412 

Section  1.  In  general 412 

•  Article  III.  In  what  actions  not  allowed 413 

Section  1.  In  general ...  413 

Article  IV.  In  whose  favor  issued 415 

Section  1.  In  general 415 

Article  V.  Against  whom  issued 415 

Section  1.  In  general 415 

Section  2.  Absent  debtors 415 

Section  3.  Absconding  debtors 416 

Section  4.  Removal,  or  fraudulent  disposition  of  property  by 

debtors 417 

Section  5.  Non-resident  debtors 418 

Section  6.  Corporations    421 

Section  7.  Persons  in  a  representative  capacity 421 

Article  VI.  What  property  may  be  taken 422 

Section  1.  Real  estate 422 

Section  2.  Personal  property 423 

Article  VII.  What  property  exempt  from 423 

Section  1.  In  general 423 

Article  VIII.  Remedies  for  illegal  attachment  or  seizure 426 

Section  1.  By  action  on  attachment  bond 426 

Section  2.  By  action  for  malicious  attachment 428 

Chapter  XVIII.  Attorneys 430 

Title  I.  Of  the   powers,   rights,  duties  and  liabilites  of  attorneys  in 

general 430 

Article  I. "  Nature  of  the  office  and  qualifications  for 430 

Section  1.  Nature  of  the  office  generally 430 

Section  2.  Who  may  be  admitted 431 

Section  3.  Qualifications 432 

Section  4.  Suspension .  433 

Section  5.  Striking  off  the  roll 434 

Article  II.  Authority  or  powers  of  attorneys 434 

Section  1.  In  general 434 

Section  2.  To  demand  client's  money,  etc. 435 

Section  3.  To  dispose  of  securities,  etc 436 

Section  4.  To  make  settlements,  compromises,  etc 436 

Section  5.  To  control  proceedings,  etc.,  of  suits 437 

Section  6.  To  make  admissions,  stipulations,  etc 440 

Section  7.  To  control  judgment,  execution,  etc 441 

Section  8.  To  prosecute  auxiliary  proceedings 443 


xxviii  TABLE  OF  CONTENTS. 

Parti,  Chap.  XVIII  —  Attorneys  —  Continued.  PAoa 

Article  III.  Duties,  liabilities  and  disabilities  of  attorneys 444 

Section  1.  In  general 444 

Section  2.  Skill  and  fidelity 445 

Section  3.  Attorney  as  bail 445 

Section  4.  Attorney  as  witness 446 

Section  5.  Attorney  cannot  act  in  other  capacity 447 

Section  6.  Cannot  act  on  opposite  sides 448 

Section  7.  Liability  to  third  persons 448 

Section  8.  Liability  for  costs,  fees,  etc 449 

Article  IV.  Rights  and  privileges  of  attorneys 450 

Section  1.  In  general 450 

Section  2.  To  compensation 451 

Section  3.  Special  agreements  for  pay 452 

Section  4.  Lien  for  costs 453 

Section  5.  Privileges  generally 455 

Article  V.  Action  by  attorney  against  client 456 

Section  1.  In  general 456 

Section  2.  Retainer 456 

Section  3.  Proof  of  retainer 457 

Section  4.  Unauthorized  appearance 458 

Article  VI.  Actions  and  proceedings  by  client  against  attorney . .   459 

Section  1.  In  general 459 

Section  2.  For  negligence 459 

Section  3.  For  accounting  and  payment 461 

Section  4.  Summary  proceedings  to  collect,  etc 462 

Section  5.  Other  relief 462 

Article  VII.  Change,  etc.,  of  attorneys 462 

Section  1.  In  general,  by  client 462 

Section  2.  Withdrawing  by  attorney 463 

Section  3.  Assistants  or  substitutes 463 

Section  4.  Partners  of  attorney 464 

Section  5.  Clerks 465 

Article  VIII.  Dealings  between  attorney  and  client 465 

Section  1.  In  general 465 

Section  2.  Presumptions 466 

Section  3.  Relief  granted  to  client 466 

Section  4.  Protection  to  attorney 467 

Section  5.  Purchases  adverse  to  client 467 

Section  6.  Attorney  held  as  trustee 467 

Article  IX.  Privileged  communications 468 

Section  1.  In  general 468 

Section  2.  Exceptions  and  hmits  to  rule 469 

Section  3.  Presence  of  both  parties 470 

Section  4.  Production  of  papers 471 

Section  5.  Waiving  privilege 471 

Section  6.   Termination  of  privilege 471 

Section  7.  What  are  privileged  communications 472 

Section  8.  What  not  privileged. ...    472 


TABLE  OF  CONTENTS.  xxix 

Part  I,  Chap.  XVIII  —  Attorneys  —  Continued.  page. 

Article  X.  Disbarring 473 

Section  1.  In  general 473 

Section  2.  What  is  ground  for 473 

Section  3.  Notice  to  attorney 474 

Section  4.  Decision  and  effect  of 475 

Section  5.  Restoration 475 

Chapter  XIX.  Auctioneers 476 

Title  I.  Of  auctions  and  auctioneers  in  general 476 

Article  I.  Who  may  be  an  auctioneer 476 

Section  1.  In  general 476 

Section  2.  Statutes  relating  to 476 

Article  II.  Rights  and  powers  of  auctioneers 477 

Section  1.  As  to  conditions  of  sale 477 

Section  2.  May  receive  payment 477 

Section  3.  No  right  to  warrant  478 

Section  4.  Cannot  delegate  his  powers 478 

Section  5.  Limited  to  perfecting  sale  by  auction 478 

Section  6.  May  bring  actions 478 

Section  7.  Cannot  sell  at  private  sale 479 

Section  8.  Cannot  bid  or  buy  for  another 479 

Article  III.  Duties  and  liabilities  of  auctioneers 479 

Section  1.  As  to  care  of  property 479 

Section  2.  To  obey  instructions 480 

Section  3.  Selling  for  undiscovered  principal 480 

Section  4.  Diligence  and  honesty 480 

Section  5.  Sale  of  stolen  goods 480 

Section  6.  Liable  as  a  stakeholder 481 

Article  IV.  Eflfect  of  puffing  and  combinations 482 

Section  1.  In  general 482 

Section  2.  Illusory  bids,  when  allowed 483 

Article  V.  Sale,  when  binding 485 

Section  1.  In  general 485 

Article  VL  Effect  of  statute  of  frauds 485 

Section  1.  Auctioneer  agent  of  both  parties 485 

Section  2.  Form  of  memorandum  of  sale 486 

Article  VII.  Compensation  of  auctioneer 487 

Section  1.  In  general 487 

Section  2.  Loss  by  negligence  or  fraud 487 

Article  VIII.  Actions  founded  upon  auction  sale 488 

Section  1.  Auctioneer  may  sue 488 

Section  2.  Vendor  liable  for  auctioneer's  statements 488 

Chapter  XX.  Audita  Querela 489 

Article  I.  Nature  of  the  remedy    489 

Section  1.  In  general 489 

Section  2.  Where  it  will  lie 489 

Section  3.  When  it  does  not  lie 491 


XXX  TABLE  OF  CONTENTS. 

Part  I,  Chap.  XX  —  Audita  Querela  -  Continued.  page. 

Section  4.  Procedure,  etc 492 

Section  5.  Relief  upon  motion 492 

Chapter  XXI.  Bailments 494 

Title  I.  Of  bailments  generally 494 

Article  I.  Nature  and  definition 494 

Section  1.  In  general 494 

Article  II.  Of  the  various  kinds  of  bailments 495 

Section  1.  In  general 495 

%        Section  2.  General  rules  relating  to  bailments 495 

Section  3.  What  care  and  diligence  is  required 496 

Section  4.  Effect  of  custom  or  usage 496 

Section  5.  Of  the  kinds  and  degrees  of  negligence 497 

Section  6.  Fraud  by  bailee 497 

Chapter  XXII.  Banks  and  banking 498 

Title  I.  Of  the  rights,  powers,   duties  and  liabilities  of  banks  and 

bankers 498 

Article  I.  General  principles  relating  to  banks  and  bankers 498 

Section    1.  Nature  of  their  dealings  in  general. , 498 

Section    2.  Effect  of  usage  upon  the  contracts  and  dealings 

with  banks 499 

Section    3.  By-laws  of  bank,  force  of 500 

Section    4.  Liens  of  banks  and  bankers 500 

Section    5.  Deposits,  general  and  special 501 

Section    6.  Relation  between  bank  and  depositor 502 

Section    7.  Repayment  of  deposits 503 

Section    8.  "Who  may  withdraw  deposits 504 

Section    9.  Demand  of  deposit 504 

Section  10.  Checks,  nature  and  requisites  of 505 

Section  11.  Certified  checks 507 

Section  12.  Paying  forged  checks 508 

Section  13.  Notes  payable  at  a  bank 509 

Section  14.  Over-drafts 509 

Section  15.  Pass-books 510 

Section  16.  Certificate  of  deposit 511 

Section  17.  Nature  of  bank  notes  or  bills 511 

Section  18.  Destroyed,  mutilated  or  lost  notes 512 

Section  19.  Forged  or  stolen  bills 512 

Section  20.  Demanding  payment  of  bank  bills 513 

Section  21.  Mode  of  payment 514 

Section  22.  Refusal  to  redeem,  consequence  of 514 

•  Section  23.  Loans  and  discounts 514 

Section  24.  Collections  by  banks  and  bankers 516 

Section  25.  Liability  of  collecting  bank 516 

Section  26.  Employing  second  bank 517 

Section  27.  Liability  of  second  bank 517 

Section  28.  Powers  and. duties  of  cashier 518 


I 


TABLE  OF  CONTENTS.  xxxi 

Part  I  —  Of  actions  and  defenses —  Continued.  page. 

Chapter  XXIII.  Bills  of  lading 521 

Title  I.  Of  the  rights,    duties,  liabilities  and  remedies  of  parties  to 
bills  of   lading,  or  to  indorsees  or  holders  of  them, 

or  of  possessors  of  the  property  in  them 521 

Article  I.  General  principles  relating  to  bills  of  lading 521 

Section    1.  Nature  of  a  bill  of  lading 521 

Section    2.  Who  may  make  them 522 

Section    3.  To  whom  given 522 

Section    4.  Form  and  requisites 522 

Section    5.  Duration  and  currency 523 

Section    6.  NegotiabiUty 524 

Section    7.  Exemption  of  risks 525 

Section    8.  Rigts  of  shipper  of  property 526 

Section    9.  Rights  of  indorsee  or  holder 526 

Section  10.  Who  is  a  hona  fide  holder 527 

Section  11.  Right  of  vendor  or  consignor  to  stop  in  transitu,  528 

Section  12.  Who  not  a  holder  for  value 529 

Section  13.  Pledging ■ 529 

Section  14.  Lien  of  shipping  agent 530 

Section  15.  Presentation  and  production 530 

Section  16.  How  aflPected  or  varied  by  parol  evidence 530 

Section  17.  Legal  remedies 532 

Section  18.  Equitable  remedies 533 

Chapter  XXIV.  Bills  of  exchange  and  promissory  notes 534 

Article  I.  General  principles  and  definitions 534 

Section  1.  In  general 534 

Article  IT.  Parties  to  a  bill  or  note 537 

Section  1.  In  general 537 

Article  III.  Forms  and  requisites  of  bills  and  notes,  etc 538 

Section  1.  In  general 538 

Article  IV.  Negotiability  of  bills  and  notes 561 

Section  1.  In  general 561 

Article  V.  Bills  and  notes  not  negotiable 573 

Section  1.  In  general 573 

Article  VI.  Guaranty  of  bills  and  notes 582 

Section  1.  In  general 582 

Article  VII.  Indorsement  and  transfer  of  bills  and  notes 585 

Section  1.  In  general 585 

Article  VIII.  Lost  bills  and  notes 602 

Section  1.  In  general 602 

Article  IX.  Consideration  of  bills  and  notes 607 

Section  1.  In  general 607 

Article  X.  Presentment  for  acceptance 618 

Section  1.  In  general 618 

Article  XL  Acceptance  of  bills 621 

Section  1.  In  general 621 


xxxii  TABLE  OF  CONTENTS. 

Part  I,  Chap.  XXIV  —  Bills  of  exchange  and  promissory  notes  — Continued,  page. 
Article  XII.  Proceedings  on  non-acceptance 626 

Section  1.  In  general 626 

Article  XIII.  Presentment  for  payment,  and  payment 635 

Section  1.  In  general 635 

Article  XIV.  Payment,  by  whom 641 

Section  1.  In  general 641 

Article  XV.  Proceedings  on  non-payment,  notice 644 

Section  1.  In  general 644 

Chapter  XXV.  Bills  of  peace 649 

Title  I.  Nature  of  the  remedy  by,  and  in  what  cases  allowed 649 

Article  I.  When  the  remedy  will  lie 649 

Section  1.  Nature  of  the  remedy 649 

Section  2.  To  quiet  claims  established  at  law 649 

Section  3.  To  establish  rights  of  all  parties 650 

Section  4.  In  other  analogous  cases 651 

Article  II.  When  the  remedy  will  not  lie 652 

Section  1.  To  establish  private  right  against  the  rights  of  the 

public 652 

Section  2,  No  privity  among  parties 652 

Section  3.  No  legal  or  equitable  title  in  party 653 

Section  4.  Eemedy  at  law 653 

Chapter  XXVI.  Bills  quia  timet 654 

Title  I.  Of  the  nature  of  bills  quia  timet,  and  in  what  cases  allowed . .   654 

Article  I.  When  the  remedy  will  lie 654 

Section  1.  Definition  and  nature  of  bills  quia  timet 654 

Section  2.  To  preserve  property  for  the  party  entitled  thereto,  654 
Section  3.  Application  of  remedy  to  future  interests  in  per- 
sonalty    655 

Section  4.  Protection  of  sureties 656 

Section  5.  Micellaneous  cases 657 

Article  II.  Mode  of  obtaining  relief 657 

Section  1.  In  general 657 

Section  2.  By  appointment  of  receiver 658 

Section  3.  By  ordering  money  to  be  paid  into  court  660 

Section  4.  By  ordering  defendant  to  give  security 661 

Section  5.  By  writ  of  injunction. 661 

Chapter  XXVII.  Bill  to  remove  cloud  on  title 662 

Title  I.  Nature  of  the  remedy,  and  when  obtainable 662 

Article  I.  When  the  remedy  lies 662 

Section  1.  What  constitutes  cloud  on  title 662 

Section  2.  Jurisdiction  to  remove,  in  what  court 663 

Section  3.  Who  may  maintain  the'bill 663 

Section  4.  In  what  cases  maintainable 664 


TABLE  OF  CONTENTS.  xxxiii 

Part  I,  Chap.  XXVII  —  Bills  to  remove  cloud  on  title  —  Continued.  page. 

Article  II.  When  the  remedy  will  not  lie 666 

Section  1.   Where  party  is  out  of  possession  ,  , G66 

Section  2.  Complainant's  title  doubtful 666 

Section  3.  Instrument  void  on  its  face 666 

Section  4.  Other  cases 667 

Article  IIJL.  Mode  of  granting  relief 668 

Section  1.  In  general 668 

Chapter  XXVIII.  Bonds 670 

Title  I.  Of  bonds  in  general 670 

Article  I.  Nature  and  definition 670 

Section  1.  In  general 670 

Article  II.  Parties 671 

Section  1.  Obligor 671 

Section  2.   Obligee 672 

Article  III.  Form  and  contents  of  bond 672 

Section  1.  In  general 672 

Section  2.  Consideration 673 

Sedtion  3.  Seal 674 

Article  IV.  Execution,  mode  of 676 

Section  1.  Attestation^,  etc 676 

Section  2.  Filling  up  blanks 678 

Section  3.  Delivery  and  acceptance 679 

Article  V.  Construction  and  effect 680 

•  Section  1.  Recitals 680 

Section  2.  General  rules 680 

Section  3.  Of  particular  w^ords  and  phrases 682 

Section  4.  Validity 683 

Section  5.  Performance 685 

Section  6.  Breach 686 

Article  VI.  Release  and  discharge 687 

Section  1.  In  general 687 

Article  VII.  Negotiable  bonds 688 

Section  1.  What  are 688 

Section  2.   Rights  of  bona  fide  holder 689 

Article  VIII .   Official  bonds 689 

Section  1.   Construction  and  effect  of 689 

Section  2.  Validity 690 

Section  3.  Rights  and  liabilities  under 691 

Section  4.  Breach 691 

Section  5.  Discharge 691 

Section  6.  Of  United  States  officers 692 

Section  7.   Of  sheriffs,  constables,  etc 693 

Article  IX.   Indemnity  bonds 693 

Section  1.  In  general 693 

E 


xxxiv  TABLE  OF  CONTENTS. 

Part  I,  Chap.  XXVIII  —  Bonds  —  Continued.  PAGE, 

Article  X.  Bonds  in  particular  cases 694 

Section  1.  To  pay  money 694 

Section  2.  To  perform  services,  etc 694 

Article  XI.  Action  upon  bonds 695 

Section  1.  Jurisdiction,  etc 695 

Section  2.  When  an  action  lies 696 

Section  3.   Upon  what  state  of  facts 697 

Article  XII.  Defenses  to  action  on  bond 699 

Section  1.   Grounds  of,  in  general 699 

Section  2.  Denying  execution 700 

Section  3.  Impeaching  consideration 701 

Section  4.  Averment  of  fraud 701 

Section  5.  Performance  of  condition 703 

Section  6.  Discharge  by  payment,  etc 704 

Article  XIII.  Remedy  on  lost  bond 705 

Section  1.  In  general 705 

Chapter  XXIX.  Boundaries 707 

Title  I.  Private  boundaries 707 

Article  I.  How  established  between  individual  proprietors 707 

Section    1.  Boundary  defined 707 

Section    2.  Public  street  or  highway 708 

Section    3.  Sea  shore 710 

Section    4.  Lakes  or  rivers 711 

Section    5.   Other  boundaries 713 

Section    6.  Marshaling  boundaries '  713 

Section    7.  Construction  of  grants,  in  respect  to  boundary. .  714 

Section    8.  Effect  of  acquiescence  in  boundary  line 717 

Section    9.  Special  agreements  as  to  boundary  line 718 

Section  10.  Settlement  of  disputed  boundaries 720 

Chapter  XXX.  Breach  of  marriage  promise 722 

Article  I.  As  to  right  of  action  for  breach  of  promise  to  marry  . .  722 

Section  1.  Nature  of  contract  to  marry 722 

Section  2.  Promises  must  be  reciprocal 723 

Section  3.  Conditional  promises 724 

Section  4.  Time  of  performance ■ 724 

Section  5.  Validity  of  promise 725 

Section  6.  Excuses  for  breach  of  promise 725 

Section  7.  Abandonment  of  contract  to  marry 726 

Section  8.  Who  may  maintain  action  for  breach  of  promise. .  726 

Section  9.  Damages  in  action  for 727 

Chapter  XXXI.  Bridges 729 

Article  I.  Of  the  general  rules  of  law  relating  to  bridges 729 

Section  1.  Definition  of 729 

Section  2.  How  established 730 

Section  3.  Reparation  of  bridges 731 


TABLE  OF  CONTENTS.  xxxv 

Part  1 ,  Chap.  XXXI  —  Bridges  —  Continued.  vace. 

Section  4.  Remedies  for  neglect  to  repair 732 

Section  5.  Toll  bridges 733 

Chapter  XXXII.  Canals 736 

Article  I.   General  rules  of'law  relating  to  canals 736 

Section  1.  Definition  736 

Section  2.  Construction  and  management  of •  736 

Section  3.  Keeping  in  repair 737 

Section  4.  Tolls 738 

Section  5.  Negligence 738 

Section  6,  Liability  of  officers  in  charge 738 


TABLE  OF  CASES. 


PAGE. 

Abbott  V.  Abbott  . . .' 123,  715,  719 

Abbott  V.  Blossom 405,  406 

Abbott  V.  Button 458 

Abbott  V.  Gatch 404 

Abbott  V.  Shepard 86 

Abbott  V.  Zeigler  . . . . : 446 

Abbe  V.  Eaton 531 

Abbe  V.  Rood 437 

Abeel  v.  Radcliff 113 

Abercrombie  v.  Manly 569 

Aberdeen  v.  Blackmar 686 

Acheson  v.  Miller 183 

Ackerman  v.  Humphrey  525 

Acton  V.  Blundell 144 

Adams  v.  Adams 119,  120,  354 

Adams  v.  Bean 677 

Adams  v.  Brackett 351 

Adams  v.  Brougbton 372 

Adams  v.  Burton 300 

Adams  v.  Clark 275 

Adams  v.  Frotbingbam 131 

Adams  v.  Fort  Plain  Bank 443 

Adams  v.  Rivers 148 

Adams  V.  Hall 318 

Adams  v.  Honness 71 

Adams  v.  Hopkins 450 

Adams  v.  Roller 436 

Adams  v.  Jones 565 

Adams  v.  Paige 141 

Adams  v.  Hill 123 

Adams  v.  Warner 124 

Adams  v.  Orange  County  Bank 504 

Adams  v.  Otterbach 499 

Adams  v.  Olive 427 

Adams  v.  Packet  Co 521 

Adams  v.  King 539 

Adams  v.  Leland 636 

Adamson  v.  Jarvis 272,  481 

Adsit  V.  Brady 739 

^tna  National  Bank  v.  Fourth  Na- 
tional Bank 502,  505,  535 

^tna  Ins.  Co.  v.  Allen  Bank 517 

iEtna  Ins.  Co.  v.  Church 249 

Ahern  v.  Nat.  Steamship  Co 421 

Aikin  v.  Bloodgood 386 

Aikin  v.  Buck  » 285 

Aiken  v.  Peay 186 


PAGE. 

Ainslee  v.  Wilson 618 

Alabama  County  v.  Brainard 593 

Albany  City  Bank  v.  Schermerhorn,  659 

Albany  City  Ins.  Co.  v.  Whitney. ...  411 

Albert  Wiley  v.  Keokuk 346 

Alcada  v.  Morales 679 

Alcorn  v.  Mitchell 346 

Aldred's  Case 293 

Aldrich  V.  Cooper 353 

Aldrich  v.  Jackson 368 

Aldrich  v.  Wright 321 

Aldrich  v,  Boston  &  Worcester  R.  R. 

Co 250 


Aldridge  v.  Branch  Bank 

Alexander  v.  Jacobs 

Alexander  v.  Jameson 

Alexander  v.  Mackenzie 

Alexander  v.  Pendleton. . .   650,  651, 

Alexander  v.  Thomas 

Algeo  V.  Algeo 

Alger  V.  Scott 363,  552, 

Alger  V.  Thacher 

Allen  v.  Brown 360, 

Allen  V.  Clark 

Allen  V.  City  of  Buffalo 

Allen  V.  Fosgate 

Allen  V.  Ford 

Allen  V.  Fourth  Nat.  Bank  of  New 

York 

Allen  V.  Hammond 

Allen  V.  Harrison 

Allen  V.  Jarvis 

Allen  V.  Kingsbury 

Allen  V.  Merchants'  Bank 

Allen  V.  Miller 

Allen  V.  McNew 

Allen  V.  Rightmere 

Allen  V.  Smith 

Allen  V.  State  Bank 163, 

Allen  V.  Sullivan  R.  R 

Allen  V.  Suydam 

Allen  V.  Wood 

Allen  V.  Woodward 104, 

Allen  V.  Pryor 

AUiare  v.  Ouland 390, 

Allard  v.  Lamirande 

Allard  v.  Smith 723, 


556 
427 
675 
591 
652 
549 
386 
557 
674 
480 
569 
662 
584 
408 

503 
111 
470 
389 
707 
517 
368 
383 
583 

99 
499 
675 
637 
185 
407 

97 
487 
453 
736 


XXXVlll 


TABLE  OF  CASES. 


PAGE. 

Alley  V.  Rogers '. . .  516 

Allston  V.  Clay 425 

Almony  v.  Hicks 633,  666,  667 

Alna  V.  Plummer 486 

Alsbrook  v.  Hathaway 406 

Alshire  v.  H^^]se 714 

Alspaugli  V.  Jones 438,  442 

Alston  V.  Muraford 352 

Alston  V.  Newcomer 419 

Althorf  V.  Wolfe 264 

Al vord  V.  Baker 576 

Ambler  v.  Church 147 

American  Bank  v.  Rollins 411 

American  Exchange  »Bank   v.   Blan- 

chard 548 

American  Express  Co.  v.  Pinckney. .   127 

Ames  V.  Meriam 507 

Amick  V.  O'Hara 305,  322 

Amidon  v.  Aikin 491 

Amory  v.  Flynn 298,  300 

Amos  V.  Alln  lit 684 

Ancher  v.  Bank  of  England 591,  597 

Anderson  v.  Clark 583 

Anderson  v.  Coonley 216,  222 

Anderson  v.  Drake 557,  620,  636 

Anderson  v.  Doak 424 

Anderson  v.  Earns 683 

Anderson  v.  Hays 402 

Anderson  v.  Hooks 662 

Anderson  v.  James 717 

Anderson  v.  Longden 691 

Anderson  v.  Miller 366 

Anderson  v.  Solomon 387 

Anderson  v.  State  of  Georgia 252 

Anderson  v.  Talbot 664,  667 

Anderson  v.  Van  Alen 369 

Anderson  v.  Weiser 249 

Andrews  v.  Bagg 625 

Andrew  v.  Blackby 506 

Andrews  v.  Chadbourne 567 

Andrews  v.  Estes 237 

Andrews  v.  Hall 211 

Andrews  v.  Hobson ' 180 

Andrews  v.  Ives Ill 

Andrews  v.  Michigan  Central  R.  R. 

Co 415,  421 

Andrews  v.  Montgomery.. .   384.  387,  388 

Andrews  v.  Morse 454 

Andrews  v.  Ohio,  etc.,R.  R.  Co 471 

Andrews  v.  Rue 368 

Andrews  v.  Stone 345 

Andrews  v.  Sparhawk 328,  329 

Andrews  v.  Thompson ". 471 

Andre  v.  Johnson 341 

Angel  V.  Felton 570 

Angel  V.  Smith 659 

Angle  V.  Hanna 386 

Angus  V.  Radin 304,  308,  310 

Annuity,  A 323 

Annuity,  C 325 

Anonymous 169,  189,  433,  463,  685 

Anshutz  V.  Anshutz 656 

Anthony  v.  Haneys 59,  162 

Anthony  v.  Slaid 149 

Anthony  v .  Wil  son 702 

Appleby  v .  Biddulph 545 


PAGE. 

Appleby  v .  Brown 173 

Applebee  v.  Percy 316 

Appleton  V.  Bascom 109 

Appleton  V.  Chase 102 

Appleton  V.  Fullerton  ......' 142 

Apperson  v.  Bynum 632 

Apperson  v.  Ford 666 

A  pthorp  V .  Comstock 669 

Aranguren  v.  Scholfield •  165 

Archer  v.  Clatiin 574 

Archer  v.  Hart 682 

Arcliibald  v.  Thomas 119,  121,  127 

Arents  v.  Com 688 

Argenbriglit  v.  Campbell 677 

Armstrong  v.  Armstrong 659 

Armstrong  County  v.  Clarion  County  183 

Armstrong  v.  Craig 460 

Armstrong  v.  Dubois. . . , 448 

Armstrong  v.  Elliott 246 

Armstrong  v.  Garrow 384 

Armstrong  v.  Smith 254 

Armstrong  v.  Toler 255 

Armitage  v.  Wadsworth  162 

Armstrong  v.  Webster 397 

Arms  V.  Ashley , 90 

Arnold  v.  Arnold 403 

Arnold  v.  Barrow 210,  363 

Arnold  v.  Elmore 711 

Arnold  v.  Elwell 365 

Arnold  V.  Lyman 390 

Arnold  v.  Macungie  Savings  Bank. .  517 

Arnold  v.  Mundy 301 

Arnold  v.  Norton 308,  314 

Arnold  v.  Paxton 400 

Arnold  v.  Rock  River,  etc.,  R.  R 553 

Arnold  v.  Robertson 460 

Arnold  v.  Sprague 538,  622 

Arrington  v.  Liscomb 664 

Arrington  v.  Sneed 453,  463 

Arthur  v.  Griswold , 140 

Artisans'  Bank  v.  Backus ^   633 

Ascutney  Bank  v.  McOrmsby 406 

Ashby  V.  White 140,  148 

Ashley's  Case 206 

Ashley  v.  Harrison 39,  149 

Aspinwall  v.  Sacchi 183,  185,  186 

Aspinwall  v.  Torrance, 258 

Astor  V.  Mayor,  etc.,  of  New  York. .  666 

Astreen   v.  Flanagan 208 

Atcheson  v.  Mallon 483 

Atchinson  v.  Baker 725 

Atkinson  v.  Gray 350 

Atkinson  v.  Leonard. . . . ; 163 

Atkinson  v.  Manks  ....  546,  552,  574,  575 

Atkinson  v.  Runnells 369 

Atkinson  v.  Settree 375 

Atkins  v.  Farr 723 

Atkins  V.  Rison 168 

Atkyns  v.  Amber 47 

Atlantic  Mut.  Ins.  Co.  v.  McLoon 418 

Atlee  V.  Backhouse 671 

Attorney-General  v.  Brunning 349 

Attorney-General   v.   Mayor,  etc,  of 

Dublin 174 

Attorneys'  License 432 

Attwood  V.  Emery 120 


TABLE  OF  CASES. 


XXXIX 


Atwood  V.  Fisk 154 

Atwood  V.  Fowler 198 

Atwood  V.  Griffin 542 

Attwood  V.  Munnings 591 

Atwood  V.  Small 139 

Atwood  V.  Vincent 156 

Aubiu  V.  laly 323 

Auburn  &  Cato   Plank-Road   Co.    v. 

Douglass 36 

Auchmutv  V.  Ham 318,  319 

Augur  V.  ^\  Y.  Belting  &  Packing  Co.,  358 

Aultman  v.  Jones 224,  231 

Aurentz  v.  Porter. 659 

Aurora  City  v.  West 689 

Austin  V.  Crawford 129 

Austin  V.  Burbank 694 

Austin  V.  Burgett 415 

Austin  V.  Burns  547 

Austin's  Case 430,  473 

Austin  V.  Hudson  R.  R.  Co 144 

Austin  V.  Monroe 444 

Austin  V.  Rodman , 628 

Austin  V.  Wheeler 189 

Autrey  v.  Autrey ,  207,  209,  210 

Avards  v.  Rhodes 50 

Avery  v.  Halsey 272 

Avery  v.  Tyringham 394 

Averill  v.  Loucks 350,  352 

A wde  V.  Dixon 610 

Axtell  V.  Caldwell 703 

Aymar  v.  Beers 619 

Aymar  v.  Sheldon 593 

Ayer  v.  Hawkins 177 

Ayers  v.  Harness 678 

Ayres  v.  Milroy 565 

Ayres  v.  Wilson 567 

Ayrault  v.  McQueen 611 

Ayrault  v.  Pacific  Bank,  243,  244,  251 ,  266 

516,  517 

Babcock  v.  Beman 238,  588,  589,  598 

Babcock  v.  McCamant 152 

Babcock  v.  Utter 716 

Baber  v.  Harris 374 

Bachelder  v.  Bickford 384 

Bachelder  v.  Fiske 186 

Bachelor  v.  Priest 634 

Bache  v.  Proctor 703 

Backus  V.  Shipherd 635 

Backhouse  v.  Patton 350 

Backenstoss  v.  Stabler 483 

Back  V.  Stacy 292 

Bacon  v.  Brown 177 

Bacon  v.  Burnham 602 

Bacon  v.  Lane 695 

Bacon  v.  Marshall 413 

Baddely  v.  Mortlock 725 

Badger  v.  Bank  of  Cumberland 520 

Badiam  v.  Tucker 685 

Bagley  v.  Morrill 715 

Bailey  v.  Adams 276 

Bailey  v.  Bagley 435 

Bailey  v.  Bidwell 611 

Bailey  v.  Bussing 110 

Bailey  v.  Butterfield 388 

Bailey  v.  Day 95 


PAGE. 

Bailey  v.  Delaplaine *..,..  431 

Bailey  v.  Freeman . .   393 

Bailey  v.  Jackson 704 

Bailey  v.  Johnson   404 

Bailey  v.  Jones 719 

Bailey  v.   Quint 276 

Builey  v.  Ryder 21 

Bain  v.  BroVu 246 

Balu  V.  Clark 253 

Bain  v.  Hunt 384 

Bain  v.  Lyle 685,  703 

Bain  v.  Sadler 349,  350 

Bain  v.  Wilson 543 

Bainbridge  v.  Pickering. , 378 

Baird  v.  Blagrave 377 

Baird  v.  Hall 245 

Baker  v.  Block 596 

Baker  v.  Bouesteel 572 

Baker  v.  Cartwright 726 

Baker  v.  Cook 454 

Baker  v.  Haley 683 

Baker  v.  Howell 387 

Baker  v.  Johnson  Co 83 

Baker  v.  Johnson 145,  171 

Baker  v.  Judges,  etc 490,  493 

Baker  v.  Kent  worthy 425 

Baker  v.  Ridgwuy 489 

Balch  V.  Patten .' 408 

Baldy  v.  Stratton  727,  728 

Baldwin  v.  Bennett 404 

Baldwin  v.  Brown ,   718 

Baldwin  v.  Burrows 219 

Baldwin  v.  Casella 316 

Baldwin  v.  Hayden 338 

Baldwin  v.  Leonard 259 

Baldwin  v.  Potter 253,  255 

Balfe  v   West 375 

Ball  v.  Ball 708 

Ball  V.  Cox 718 

Ball  V.  Sleeper 491 

Ball  V.  Storie 116 

Ballard  v.  Bond .• 343 

Ballard  v.  Randall 505 

Ballard  v.  Walker 373 

Baltimore  R.  R.  Co.  v.  Breinig. .....  346 

Baltimore,  etc.,  R.  R.  v.  Rathbone. . .   402 

Baltimoue  v.  Reynolds 261 

Baltimore  &  Ohio  R.  R.  v.  Potty 382 

Baltzen  v.  Nicolay 257,  488 

Balsbaugh  v.  Frazier 451 

Ballston  Spa   Bank  v.  Marine  Bank,  234 

519 

Bancroft  v.  Dumas 177 

Bancroft  v.  Stanton 675 

Bancroft  v.  Winspear 696 

Banfield  v.  Rumsey 544 

Bangor  Bridge  Co.  v.  McMahon 381 

Bangor,  etc.R.  R.  Co.  v.  Smith 143 

Bangs  V.  Little 341 

Bank  v.  Beebe 396 

Banks  v.  Dixon 165 

Banks  v.  Evans 442 

Bank  v.  Lonergan's  Adm'r 621 

Banks  v.  Ogden 709 

Bank  v.  Thornsberry 514 

Bank  v.  Willard 681 


xl 


TABLE  OF  CASES. 


PAGE. 

Bankhead  v.  Alloway 19G 

Bauk  of  Albion  v.  Smith 596,  626 

Bank  of  Alexandria  v.  Deneale 499 

Bank  of  Alexandria  v.  Mandeville  . .  515 
Bank  of  Bennington  v.  llaymoud  . . .  619 
Bank   of  British  North  America  v. 

Hooper 239 

Bank  of  Chenango  v.  Root 648 

Bank  of  Columbia  v.  Magruder 499 

Bank  of  Commerce   v.  Union  Bank,  508 

600 
Bank  of  Cumberland  v.  Mayberry. . .  556 

Bank  of  England  v.  Newman   562 

Bank  of  Genesee  v.  Patchin  Bank. . .   238 

Bank  of  India  v.  Bugbee 223 

Bauk  of  Kentucky  v.  Brooking 219 

Bank   of     Kentucky     v.     Schuylkill 

Bank 266,  519 

Bank  of  Kentucky  v.  Wister 503 

Bank  of  Louisville  v.  Ellery 593 

Bank  of  Louisville  v.  Summers 512 

Bank  of  Mobile  v.  Huggius 378,  516 

Bank  of  the  Metropolis  V-  New  Eng- 
land Bank 500 

Bank  of  Metropolis  v.  Jones 519 

Bauk  of  Missouri  v.  Benoist 504 

Bank  of  Montgomery  v.  Knox 516 

Bank  of  Newbern  v.  Pugh 680 

Bank  of   North  America  v.  National 

Bank  of  Commonwealth 508 

Bank  of  New  York  v.  Bank  of  Ohio,  588 
Bank'of  New  York  v.  Vanderhorst  . .  590 
Bank  of  Northern  Liberties  v.  Jones,  503 
Bank  of  Orange  County  v.  Colby. . . .   130 

Bank  of  Orleans  v.  Merrill 511 

Bank  of  Peru  v.  Farnsworth 511 

Bank  of  the  Republic  v.  Millard,  502,  505 

Bank  of  Rochester  v.  Gray 634 

Bank  of  Rochester  v.  Monteath 634 

Bank  of  Rutland  v.  Buck 612 

Bank  for  Savings  v.  The  Collector. . .  498 

Bank  of  the  State  v.  Ford 515 

Bank  of  Syracuse  v.  Hollister  . .  620,  638 

Bank  of  Troy  v.  Topping 563,  588 

Bank  of  Utica  v.  McKinster 243 

Bank  of  Utica  v.  Magher 239 

Bank  of  Utica  v.  Merserau 469,  471 

Bank  of  Utica  v.  Smith 596,  646,  648 

Bank  of  United  States  v.  Dandridge,  219 
Bank  of  United  States  v.  Davis,   232,  646 

648 
Bank  of  United  States  v.  Donnally,  129 
Bank  of  the  United  States  v.  Dunn.  .  515 
Bank  of  the  United  States  v.  Bank  of 

Georgia    513 

Bank  of  the  United  States  v.  Macal- 

ester 502 

Bank  of  the  United  States  v.  Owens,  699 

Bank  of  Vergennes  v.  Cameron 639 

Bank  of  Virginia  v.  Ward 512 

Bauk  of  Washington  v.  Triplett  ....  517 

Banter  v.  Levy 446 

Barber  v.  Brace '. .  531 

Barber  v.  Kerr 615 

Barber  v.  Taylor 530 

Barber  v.  Taylor's  Heirs 207 


PAGE. 

Barden  v.  Southerland 679 

Bardwell   v.  Ames 718 

Bard  well  v.  Jamaica 731 

Barger  v.  Collins 870 

Baring  v.  Corrie 283 

Barker  v.  Bradley 104 

Barker  v.  Bucklin 104 

Barker  v.  Cassidy 601,  647 

Barker  v.  Cory 378 

Barker  v.  Mar.  Ins.  Co 476,  479 

Barker  v.  Mathews 141 

Barker  v.  May 349 

Barker  v.  Richardson 292 

Barksdale  v.  Finney 180 

Barlow  v.  Broadhuist 551 

Barlow  v.  Scott 117,  124 

Barlow  v.  Stal worth. 406 

Barnard  v.  Campbell 275,  528 

Barnard  v.  Kellogg..   122,  128,  129,  582 
Barnett  v.  Chicago  &  Lake  Huron  R. 

R.  Co 421 

Barnett  v.  Emerson 704 

Barnett  v.  Johnson 295 

Barnett  v.  Smith 505,  508 

Barnes  v.  Buck 413 

Barnes  v.  Chapin 807,  314 

Barnes  v.  Harris 470 

Barnes  v.  Martin •. 338,  341 

Barnes  v.  Ontario  Bauk 499,  519 

Barnes  v.  Perrine 105 

Barnes  v.  Profilet 459 

Barney  v.  Newcomb 124,  622 

Barney  v.  Patterson 411 

Barnum  v.  Thurston , 122 

Barnum  v.  Vandusen. 807 

Baron  v.   Porter 870 

Barr  v,  Hatch 170 

Barry  v .  Abbott 659 

Barry  v.  Bockover 419 

Barry  v.  Ingles 343 

Barry  v.  Page , 282 

Barry  v .  Stevens 179 

Barrick  v .  Austin 581 

Barriu  v.  Bobbins 666 

Barringer  v.  Warden 92,  104 

Barringtou  v.  Bank  of  Washington.   687 

Barrow  v.  Robbiiis 663 

Barrett  v.  Barron 687 

Barret  v.  Rhem 216 

Barrett  v.  Third  Avenue  R.  R.  Co  ...  439 

Barickraan  v.  Kuykendall 884 

Barwick  v.  English  Joint-Stock  Bank  264 

Barnstein  v.  Lans 270 

Barough  v.  White 559 

Bartle  v.  Nutt 183 

Bartlett  v.  Board  of  Education 678 

Bartlett  v.  Emery 195 

Bartlett  v.  Hamilton 241 

Bartlett  v.  Holmes 157 

Bartlett  v.  Pearson 858,  368 

Bartlett  v.  Purnell 477 

Bartlett  v.  Punnell 486 

Bartlett  v.  Robinson 630 

Bartlett  v.  Tucker 238,  239,  258 

Bartholomew  v.  Edwards 716 

Bartholomew  v.  Jacksou 104,  269 


TABLE  OF  CASES. 


xli 


PAGE. 

Bartholomew  v.  Leach 246 

Barton  v.  Baker 627,  628 

Barton  v.  Faherty 379 

Barton  v.  Kane 402 

Barton  v.  Port  Jackson  Plank  road  Co.  699 

Barton  v.  Speir 584 

Bash  V.  Bash 399 

Basten  v.  Butler 377 

Bass  V.  Mitchell 123 

Bass  V.  Peirce 281 

Bassell  v.  Elmore 149 

Bassett  v.  Avery 609 

Bassett  v.  Lederer 129,  282 

Bassett  v.  Sanborn 568 

Bassett  v.  Spofford 191 

Bates  V.  Bank  of  Alabama 219 

Bates  V.  Best 234 

Bates  V.  Butler 538,  542 

Bates  V.  Hinton 701 

Bates  V.  Pike 438 

Bates  V.  Quattlebom 146 

Bates  V.  Todd 530 

Bates  V.  Tymason 707 

Bateman  v.  Bluck 62 

Batterman  v.  Pierce 377 

Batty  V.  Carswell 240 

Batchellor  v.  Priest 619 

Bath  V.  Freeport 377 

Bathgate  v.  Haskin 444 

Baum  V .  Dubois 219 

Baur  V.  Roth 702 

Bausman  v.  Smith 413 

Bavington  v.  Pittsburgh,  etc.,  R.  R. 

Co 378 

Bawling  v.  Arthur 517 

Baxter  v.  Duren 368 

Baxter  v.  Evett 714 

Baxter  v .  Graves  629 

Baxter  v.  Lamont 227 

Baxter  v.  State 125 

Bay  V.  Cooke 210 

Bayard  v.  Hoifman 372 

Bayard  v.  Shunk < . . . .   573 

Bayer  v.  Reeside 393 

Bayley  v.  Fitsmaurice 113 

Bayley  v.  Manchester,  etc.,  Railway 

Co 265 

Bayliffe  v.  Batterworth 229 

Baylis  v .  Dineley 671 

Bayliss  v.  Pricture 269 

Baylies  v.  Fethy place 385,  402,  685 

Beach  v.  Nixon 50 

Beach  v.  Raritan  and  Delaware  Bay 

R.  R.  Co 89 

Beach  v.  Vande water 227 

Beale  v.  Parish 646,  647 

Beal  V.  Miller 155 

Beal  V.  Thompson 383 

Beau  V.  Coleman 651 

Beach  v.  Hancock 332 

Bean  v.  Keen 166 

Beard  v.  Kirk 290 

Beardsley  v.  Baldwin 549 

Beardslee  v.  Boyd 254 

Beatty  v.  McCleod 501 

Beaumont  v.  Reeve 324,  725 


PAGE. 

Beaulieu  v.  Finglam 17 

Beavers  v.  Winn 211 

Beck  V.  Thompson 634 

Becker  v.  Sweetser 361 

Beckett  v.  Lawrence 343 

Beckley'v.  Newcomb 458 

Beckwith  v.  Benner 473 

Beckwith  v.  Union  Bank 501 

Becton  v.  Ferguson    . . ; 363 

Bedell  v.  Bedell 96 

Bedell  v.  Carll 567 

Bedell  v.  Janney 252,  254 

Bedell  v.  Powell 728 

Bedger  v.  NicoUs 318 

Bedow's  Case ' 673 

Beebe  v.  Johnson 107,  383 

Beebe  v.  Robert 192,  259 

Beech  v.  White 396 

Beedle  v.  Grant 389 

Beene  v.  State 475 

Beers  v.  Hendrickson 442 

Beers  v.  Robinson 104 

Beeson  v.  Beeson 470 

Beeson  v.  Howard. 90 

Beet  V.  McLaughlin 391 

Begins  v.  Armistead 700 

Belden  v.  Meeker 586 

Belknap  v.  Bender 95 

Belknap  v.  Milliken 407 

Belknap  v.  Nat.  Bank 508 

Belknap  v.  Reinhart 263 

Bellas  v.  Fagely 381 

Beller  v.  Block 479,  487 

Bell  V.  Bruen 120,  680 

Bell  V.  Byerson 234 

Bell  V.  Cafferty 367 

Bell  V.  Cunningham 253 

Bell  V.  Eaton 726 

Bell  V.  Ellis 388 

Bell  V.  Douglass 426 

Bell  V.  Greenwood 669 

Bell  V.  Hansley 345 

Bell  V.  Hobbs 394 

Bell  V.  Keefe 678 

Bell  V.  Mason 449 

Bell  V.  Moore 166 

Bell  V.  State 7 

Bell  V.  Ursury 459 

Benden  v.  Manning. . .  393,  394,  395,  403 

Benedict  v.  Bray 683 

Benedict  v.  Field 571 

Benedict  v.   Nat.  Bank  of  Common- 
wealth    406,  407 

Benedict  v.  Stuart 453 

Bennehan  v.  Webb 680,  681 

Bennington  v.  Dinsmore 539 

Bennington  v.  The  Governor 164 

Benjamin  v.  Coventry 471 

Benjamin  v.  Fillman 563 

Benjamin  v.  McConnell 118 

Bennett  v.  Avant 416 

Bennett  v.  Davis 314 

Bennett  v.  Ford 38 

Bennett  v.  Hotchkiss 668 

Bennett  v.  Judson 139 

Benoist  v.  Carondelet 676 


xlii 


TABLE  OF  CASES. 


PAGE. 

Benson  v.  Campbell 413 

Benson  v.  Leroy 349,  350 

Benson  v.  Whitfield 449 

Bent  V.  Cassidy 669 

Bent  V.  Cobb _. . . .  486 

Benton  v.  Craig '. . . .   462 

Benton  v.  Pratt 139 

Bernhard  v.  Brunner 566 

Berkill  v.  Keiglily 404 

Berkley  v.  Watliug 532 

Berley  v.  Taylor 407 

Bernard  v.  Dickins 385 

Berry  v.  Alderman 611 

Berry  v.  Bakeman 726 

Berry  v.  Da  Costa 727 

Berry  v.  Harris 683 

Berry  v.  Kobdnson 546,  592 

Berridge  v.  Ward 709 

Bertie  v.  Lord  Abingdon 660 

Bertine  v.  Varian 188 

Berwick  v.  Horsfall 115 

Besozzi  V.  Harris 311 

Bessant  v.  Gjeat  Western  R.  R.  Co. .   304 

Bessent  v.  Harris 242 

Beswick  v.  Swindells 685 

Bethlehem  v.  Annis 362 

Bexwell  v.  Christie 255 

Bibb  V.  Smith 466 

Bickford  v.  First,  etc.,  Bank,  257,  260,  506 

Bickerton  v.  Burrell 280 

Bickerdike  v.  Bollman 628 

Biddle  v.  Ash 296 

Bidwell  V.  Madison 251 

Bigelow  V.  Bridge 691 

Bigelow  V.  Comeggs 678 

Bigelow  V.  Davis Ill 

Bigelow  V.  Heaton 276 

Bigelow  V.  Jones 408 

Bigler  v.  Reyher 468 

Biggs  V.  Blue 412 

Bill  V.  Porter 568 

Billings  V.  Jane 586 

Billings  V.  Morrow 233 

Billings  V.  O'Brien 361 

Billington  v.  Wagoner 158 

Binney  v.  Chapman  387 

Binney  v.Chesapeake  &  Ohio  Canal  Co.  736 

Bingham  v.  Supervisors 440 

Binghamton  Bridge 733 

Birckhead  v.  Brown 584,  585 

Birchard  v.  Booth 347 

Birkbeck  v.  Staflford. . .  .99,  359,  450,  465 

Bird  V.  Boulter 486 

Birt  V.  Barlow 199 

Birney  v.  Washington  Printing  Tel. 

Co ...264 

Bisbing  v.  Graham 166 

Bishop  V.  Ely 304,  305 

Bishop  V.  Fahay 320 

Bishop  V.  Williamson 267 

Bishop  V.  Snilfen 606 

Bissell  V.  First  Nat.  Bank 518 

Bissell  V.  Kellogg 662,  664 

Bissell  V.  New  York  Cent.  R.  R.  Co.  .   709 

Bissell  V.  Price 525,  531 

Bissell  V.  Roden 216 


PACK. 

Bittick  V.'  Wilkins 427 

Bixler  v.  Ream 98 

Bizzell  v.  Booker 161 

Black  V.  Brisbin 412 

Black  V.  Catle 545 

Black  V.  Caruthers ,  .  697 

Black  V.  Ward 546 

Black  V.   Whitall  211 

Black  V.  Scott 350 

Blackett  v.  Wall 704 

Blanckenhagen  v.  Blundell 539 

Blackmer  v.  Blackmer 326 

Blackstone  v.  Buttermore 289 

Blackwell  v.  Fosters 120 

Blade  v.  Chicago,  etc.,  R.  R 522 

Blade  v.  Noland 164,  166,  167;  604 

Blades  v.  Higgs 59,  800,  341 

Blake  v.  Barnard 334 

Blake  v.  Buffalo  Creek  R.  R.  Co 246 

Blake  v.  Crowninshield 403 

Blake  v.  Livingston 688 

Blake  v.  Niles 685 

Blakey  v.  Blakey 676 

Blanchard  v.  Baker 148 

Blanchard  v.  Isaacs 287 

Blanchard  v.  Page 279,  524 

Blanchard  v.  Russell 130 

Blanchard  v.  Stearns 148 

Blanchard  v.  W.  U.  Tel.  Co 730 

Blandford  v.  Andrews 704 

Blankman  v.  Vallejo 680 

Blalack  v,  Phillips 406 

Blattmacher  v.  Saal 727 

Bliss  v.  Greeley 145 

Bliss  V.  Lawrence 99,  3<>1 

Bliss  V.  Lee 169 

Bliss  V.  Thompson 702 

Blin  V.  Pierce 364 

Blinn  V.  Torre 488 

Elodget  V.  Blodget 664 

Blodgett  V.  Conklin 458 

Blodgett  V.  Durgin 635 

Blood  V.  French 478 

Blood  V.  Goodrich 234 

Bloodgood  V.  Zeily 197 

Bloomer  v.  Denman 223 

Bloomer  v.  State 334 

Bloss  V.  Kittridge 110 

Blosso^u  V.  Champion 526,  528 

Blore  V.  Sutton 236 

Blount  V.  Robeson 246 

Blount  V.  Windley 514 

Blume  V.  Bowman 679 

Blunt  V.Boyd 81,  391 

Blunt  V.  Walker 568 

Blydenburg  v.  Thayer 366 

Board  of  Supervisors  v.  Brodhead. . .  463 

Board,  etc.  v.  Strader 729 

Boardman  v.  Bickford '  AIQ 

Boardman  v.  De  Forest 704 

Boardman  v.  Gaiilard 229 

Boardman  v.  Keeler 694 

Boardman  v.  Paige 186 

Boardman  v.  Thompson 452 

Boatmen's,  etc.,  Inst.  v.  Bank  of  Mis- 
souri  514 


TABLE  OF  CASES. 


xliii 


PAGE. 

Bock  V.  Garrissen 274 

Bocock  V  Pavey 236 

Bogardus  v.  Livingston 434,  458 

Bogert  V.  Hertell 587 

Bohanan  v.  Pope 104 

Bolianan  v.  Peterson 456 

Boher  v.  Biddle 174 

Boinest  v.  Leiznez 477,  478 

Bolan  V.  Williamson 267 

Bolen  V.  Crosby 365 

Bolifeur  v.  Weyman 196 

Boiling  V.  liolling 188 

Bolton  V.  Dugdale 547 

Bolton  V.  Lanu 718 

Boltz  V.  Bullman 704 

Bomeisler  v.  Dobson 116 

Bonce  v.  Kellett 680 

Bond  V.  Cutler 694 

Bond  V.  Hays 379 

Bond  V.  Hopkins 27 

Bond  V.  Little 649 

Bond  V.  Ward .    425 

Bonliam  v.  Taylor 734 

Bonito  V.  Mosquera 273 

Bonny  v.  Morrill 437,  717 

Bonney  v.  Seely 618 

Boone  v.  State 347 

Booth  V.  Ammerman 323,  325 

Bordwell  v.  Collie Ill 

Boring  v.  Williams 690 

Borradaile  v.  Hunter 125 

Borum  v.  Fonts 470 

Boston  V.  Craig 460 

Boston  and  Worcester  R.  R.  Co.  v. 

Dana 407 

Boston  and  Maine  R.  R.  v.  Bartlett. .  103 
Boston,  C.  and  M.  R.  R.  Co.  v.  Gilmore  426 

Bostick  V.  Hardy 284 

Bostwick  V.  Menck 41 

Bostwick  •  V.  Baltimore,  etc.,  Railf oad 

Co 526,  532 

Bostwick  V.  Stiles 167 

Bothick  V.  Purdy 362 

Boulder  v.  Hebel 447 

Boulton   V .  Jones 280 

Bousfield  V.  Wilson 255 

Boutlier  v.  Johnson 457 

Bo  wen  v.  Bank  of  Medina 415 

Bowen  v.  Bell 380 

Bowen  v.  Buck 700 

Bowen  v.  Hoskins 186 

Bowen  v.  Newell 506,  641 

Bowen  v.  Slocum 412 

Bowen  v .  Stoddard  129 

Bower  v.  Jones 269,  270,  487 

Bowery  Savings  Bank  v.  Richards. . .  659 

Bowker  v.  Lowell 683 

Bowling     Green    Savings    Bank     v. 

Todd 454,  462 

Bowling  V.  Bowling 656,  661 

Bowman  v.  Tallman 445,  453 

Bowman  v.  Warhen  153 

Bowne  v.  Douglass 588 

Bowne  v.  Hyde 439 

Bowne  v.  Joy 490 

Bowyer  v.  Burley 319 


PAGE. 

Boyce  v.  Bates 449 

Boyd  V.  Brotherson 557 

Boyd  V.  Cummings 611,  612 

Boyd  V .  Dobson 234 

Boyd  V .  Dowie 720 

Boyd  V.  Emmerson 505 

Boyd  V .  Graves 719 

Boyd  V.  Hawkins 188 

Boyd  V .  Hitchcock 94 

Boyd  V.  Hunter 175 

Boyd  V .  Martin 427 

Boyd  V.  Stone 463 

Boyd  V.  Weeks 400 

Boyden  v.  Bank  of  Cape  Fear 503 

Boyer  v.  Clark 454 

Boykin  v.  Holden 459 

Boylan  v.  Holt 451 

Boyle  V.  Carter 398 

Boynton  v.  Hubbard 702 

Boynton  v .  Kellogg  723 

Boyson  v.  Coles ...  285 

Brace  v.  Grady 413 

Brackett  v.  Black 359 

Brackett  v .  Havden 276 

Brackett  v.  Winslow. .  489,  490,  491,  493 

Bradish  v .  Henderson ' 380 

Bradford  v.  Bush 227 

Bradford  v.  Cressey ...   711 

Bradford  v.  Corey 601,  647 

Bradford  v .  Gillespie 425 

Bradford  v.  McKibbon 321 

Bradford  v.  Martin 648 

Bradbury  v.  Marbury 115 

Bradley  v.  Fisher 473,  474 

Bradley  v.  Levy 385 

Bradley  v.  Obear 424 

Bradhurst  v.  Bradhurst 324 

Bradstreet  v.  Everson,  266,  449,  462,  464 

Bradt  v .  Koon 454 

Bradt  v.  Walton 460 

Bradwell  v.  State 431,  433 

Brady  v .  Mayor 398 

Brahan  v.  Ragland 359 

Brainard   v.  New  York  and   Harlem 

R.R.  Co 544 

Braithwaite  V.  Skinner 134 

Branch  v.  Elliott   690 

Branch  v.  Harrington 447 

Branch  v.  Mitchell 666,  667 

Branch  Bank  at  Mobile  v.  Tillman. .  165 
Brander  v.  Chesterfield  Justices! .. .   732 

Branden  v.  Gowing 469 

Braudao  v.  Barnett  501 

Branger  V.  Chavalier 198 

Brandt  v.  Bowlby 527 

Brannanburg  v.  Indianapolis,  etc.,  R. 

R.  Co 146 

Bray  v.  Kettell 259 

Braydon  v.  Poland 581 

Bray  ton  v.  Garvin 357 

Brazeltou  v.  McMurray 565 

Breck  v .  J  ones 234 

Bredin  v.  Kingland 453 

Breed  v .  Cook 569 

Breed  v.  Mitchell 419 

Brennan  v.  Haff. 100 


xliv 


TABLE  OF  CASES. 


PAGE. 

Brent  v.  Green 485 

Brent  v.  Kimball 303 

Brewer  v.  Cook 451 

Brewer  v.  Dyer 104 

Brew'er  V.  Hardy 120 

Brewer  v.  Herbert 172 

Brewer  v.  Marshall 674 

Brewster  v.  Honigsburger 415 

Brewster  v.  Kitcliin 143 

Brewster  v.  McCardell 556 

Brewster  v.  Saul 282 

Brewton  v.  Brewton 211 

Brewton  v.  Smith 664 

Bridenbecker  v.  Lowell 221,  228 

Bridge  Co.  v.  Hoboken,  etc.,  Co.  729,  733 
Bridge   v.   Grand  Junction  Railway 

Co 62 

Bridge  Co.  v.  Williams 734 

Bridges  v.  Purcell 340 

Bridgers  v.  Hutchins 206 

Bridgton  v.  Bennett 457 

Briggs  V.  Boyd 270 

Briggs  V.  Boston  and  Lowell  R.  R.  Co.  277 

Briggs  V.  Dorr 98,  363 

Briggs  V.  Ewart ' 566 

Briggs  V.  Georgia 464 

Briggs  V.  Partridge 237 

Briggs  V.  Sizer 576,  577 

Briggs  V.   Strange 426 

Briggs  V.  Tillotson 103 

Brigham  v.  Palmer 407 

Brigliam  v .  Marean 279 

Brill  V     Flagler •.  320 

Brinckerhotf  V.   Starkins 301 

Brinckerhoflf  v.  Wemple 380,  737 

Brinley  v.  Mann 237 

Brinsmaid  v.  Mayo 190 

Brink  v.  Dolsen 253 

Briscoe  v.  Power 387 

Brisbane  v.   Dacres 168 

Bristow  V.  Waddington 395 

Britton  v .  Bishop 400 

Britton  v .   Lewis 153 

Britton  v .  Loreuz 468 

Brittiu  V.  Mitchell 683 

Broadbead  v.  Noyes 130 

Brock  V.  Barnes 466,  467 

Brock  V.  Copeland 309 

Brock  way  v.  Allen. 238,  598 

Bromley  v.  Holland 163,  705 

Bromley  v.  Wallace 200 

Brousou  V.  Chappell 228 

Bronson  v.  Gleason 579 

Brooks  V.  Ball 94 

Brooks  V.  Cotton 123 

Brooks  V.  Curtiss 144 

Brooks  V.  Hargreaves 548 

Brooks  V.  Hook 233 

Brooks  V .  Hunt 493 

Brooks  V.  Mitchell 559 

Brooks  V.  Patterson 456 

Brooks  V.  Scott 390 

Brooks  V.  Stolley 175 

Brooks  V.  White 94 

Brookins  v.  Central  R.  R.  and  Bank- 
ing Co  731 


PAGE. 

Brooking  v.  Jennings 168 

Brookshire  v.  Brookshire 289 

Brookshire  v.  Voncannon 289 

Bromall's  Appeal 733 

Brower  V.  Hill 541 

Browerv.  Smith 423 

Brown  v.  Arrott 253 

Brown  v.  Ashbough 421 

Brown  v.  Austen 666 

Brown  v.  Brown 211,  351,  450 

Brown  v.   Boorman 135 

Brown  v.  Burke 207,  208,  210,  373 

Brown     v.    Butchers    and    Drovers' 

Bank 554,  555 

Brown  v.  Carpenter 315,  320 

Brown  v.  Central  Land  Co 233 

Brown  v.  Chadbourne 711 

Brown  v .  Chambers 356 

Brown  v.  Collins 38,  161,  308,  337 

Brown  v.  Curtiss 583 

Brown  v.  Elliott 163 

Brown  v.  Gauss 386 

Brown  v.  Higgs 171 

Brown  v.  Howard 341 

Brown  v.  Hoburger 331 

Brown  V.  Hull 


609 

Brown  v .  James 353 

Brown  v.  Kendall 161,  337 

Brown  v.  Langford 106 

Brown  v.  Leavitt 611 

Brown  v .  Maine  Bank 359 

Brown  v.  Nevitt 130 

Brown  v.  Newall 85 

Brown  v.  O'Brien 104 

Brown  v.  Orland 115 

Brown  v.  Payson 473 

Brown  v.  Pforr 289 

Rro wn  v .  Post 250 

Brown  v.   Rundlett 263 

Brown   v.  Seymour 337 

Brown  v.  Slater 120 

Brown  V.  State 440 

Brown  v.  Staton 487 

Brown  v.  Taber 611 

Brown  V.  Vandyke 193,  198 

Browning  v.  Atkinson 715 

Browning  v.  Long  Island  R.  R.  Co. .   129 
Browulow  V.  Metropolitan  Board  of 

Works 145 

Brubaker  v.  Robinson 381 

Bruce  v.  Coleman 437 

Bruce  v.*  Davenport 348 

Bruce  v .  Lord 598 

Bruce  v.  Parsons 380 

Bruce  v.  Weacott 543,  558 

Bruenv,  Hone 193,  197,  198 

Bruner  V.  Wheatou 86 

Brunswick  v.  Slowman 345 

Brush  V.  Reeves 563 

Brutt  V.  Picard 558 

Bryan  v.  Baldwin 277 

Bryana  v.  Nix 533,  533 

Bryant's  Case 433 

Bryant  v.  Damariscotta  Bank 513 

Bryant  V.  Edson 130 

Bryant  v.  Johnson 490 


TABLE  OF  CASES. 


xlv 


Bryant  v.  Moore 222,  227 

Bryant  v.  Rich 2G5 

Bryant  v.  Simoneau 417 

Brydges  v.  Lewis 397 

Backnam  v.  Bucknam 709 

Buchanan  v.  Comstock 41 

Buchanan  v.  Marshall 635 

Buchanan,  etc.,  Co.  v.  Woodman    . . .  .502 

Buchegger  v.  Schultz 512 

Buck  V.  Albee 106 

Buck  V.  Burk 579 

Buck  V.  Squires 717 

Bucklin  v.  Chapin 195 

Buckley  v.  Blackwell ...  716 

Buckley  v.  Leonard 318,  314 

Buckley  v.  Lowery 411 

Buckley  v.  Wells 215 

Buckmaster  v.  Smith 424 

Buddington  v.  Shearer 318 

Buell  V.  Chapin 245 

Buffington  v.  Gerrish 424 

Buffum  V.  Chadvvick 279 

Bugbee  v.  Sargent 327 

Building  Association  v.  Ashmead...  657 

Bull  V.  Coltou 336 

Bull  V.  Sims 544,  553,  564,  565 

Bull  V.  St.  Johns 452 

Buller  V.  Fisher." 526 

Bullene  v.  Hiatt 422,  423 

Bullet  V.  Bank  of  Pennsylvannia. . . .  166 

Bullock  V.  Babcock 160 

Bullock  V.Boyd 195,  197,  198 

Bulkley  v.  Clark 379 

Bulkley  v.  Finch 697 

Bulkley  v.  Landon 403 

Bulkeley  v.  Noble 210 

Bunnell  v.  Greathead 200,  201 

Bunn  V.  Winthrop 674 

Bunker  v.  Athera 548 

Bunker  v.  Miles 249 

Bunce  v.  Gallagher 663,  664 

Burchell  v.  Slocock 563 

Burch  V.  Newberry 156 

Burdick  v.  Green 568,  570,  595,  643 

Burghart  v.  Gardner 456 

Burke  v.  Haley ...  485 

Burke  v.  Isham 198 

Burks  V.  Shain 728 

Burke  V.Wolfe 191 

Burkhalter  v.  Second  Nat.  Bank 630 

Burkholder  v.  Plank 695 

Burkhart  v.  Jennings 428 

Burling  v.  King 466 

Burling  V.  Read 62 

Burliugame  v.  Bell 425 

Burmester  v.  Norris 231 

Burns  v.  Graham , .  581 

Burns  v.  Poulsom 264 

Buruap  v.  Marsh 265,  448 

Burnham  v.  Allen 115 

Burnham  v.  Cornwell 723 

Burnham  v.  Stevens 147 

Burne  v  Cummings. 97 

Burr  V.  Beers 392 

Burr  V.  Sickles 245,  253 

Burrall  v.  Jacot 401 


PAOB. 

Burrill  v.  Phillips 240 

Burrill  v.  Watertown  Bank  and  Loan 

Co 573 

Burridge  v.  Nicholetts 59 

Burroughs  v.  Housatonic  R.  R.  Co. .  .  145 

Burroughs  v.  Lowder 684 

Burrough  v.  Skinner 481 

Burroughs  v.  Wright 425 

Bursou  V.  Huntington 565 

Burson  v.  Kincaid  ....   687 

Burt  V.  Cassity 664,  669 

Burt  V.  Dewey Ill 

Burtis  V.  Thompson 724 

Burton  v.  Driggs 379 

Burton  v.  Dickinson 208 

Burton  v.  Gleason 663,  666 

Burton  v.  Scherpf 340 

Burton  v.  Stewart 376,  615 

Bury  V.  Pope 292 

Bush  V.  Brainard 305,  317 

Bush  V.  Cole 480 

Bush  V.  Golden 172 

Bush  V.  Lathrop 364 

Bush  V.  Miller 221 

Bushel  V.  Com.  Ins.  Co 421 

Buster  v.  Newkirk 301 

Butler  V.  Duval 631 

Butler  V.  Eschleman 726 

Butler  V.  Evening  Mail  Association. .  260 

Butler  V.  Lee 380 

Butler  V.  Mercer 346 

Butler  V.  Merchants'  Ins.  Co 208 

Butler  V.  Rawson 545 

Butler  V.  The  Arrow 531 

Butler  V.  Viele 668 

Butts  V.  Collins 405,  406 

Butt  V.  Hoge 644 

Button's  Case 333 

Button  V.  Hampson 676 

Butterfield  v.  Seligmau 385 

Buttermere  v.  Hays 397 

Butterworth  v.  Crawford 294 

Butterworth  v.  Peck 622 

Byers  v.  Bostwick 384 

Byers  v.  McClanahan 677,  678 

Byram  v.  McGuire 288 

Byrne  v.  Stewart 430 

Bysbie  v.  Wood 360 

Cabarga  v.  Seeger 121 

Cabot  V.  Haskins 96,  97,  375 

Cadbury  v.  Duval 328,  331 

Cadogan  v.  Cadogan 201 

Cadogan  v.  Kennett 372 

Cady  V.  Shepard 598 

Cafiero  v.  Welsh 521,  531 

Cage  V.  Acton 672 

Cahill  V.  Benn 437 

Cahill  V.  Eastman 161 

Cahoon  v.  Bank  of  Utica 605 

Cahoon  v.  Moore 587 

Caii-nes  v.  Bleecker 234,  256 

Cakish  v.  Ross 446 

Calcroft  V.  Harborough 203 

Caldwell  v.  Cassidy 626,  635 

Caldwell  V.  Fifield 568 


xlvi 


TABLE  OF  CASES. 


PAGE. 

Caldwell  v.  Haley 411 

Caldwell  v.  Mohawk,  etc.,  Bank,  518,  520 

Caldwell  v.  Wentworth 177 

Calhoun  v.  Atchison 88 

Calhouu  V.  Cozzens 415 

Calk  V.  Stribbing 713 

Calkins  v.  Barger 144 

Calkins  v.  Lock  wood 355 

Call  V.  Barker 714 

Callahan  v.  Boazman 177 

Callender  v.  Dinsmore 118,  122,  128 

Calton  V.  Bragg 481 

Calvert  v.  Carter 177 

Camberford  v.  Hall 412 

Camden  v.  Creel 711 

Cameron  v.  McFarland 674 

Camidge  v.  Allenby 578 

Camp  V.  Barker 389 

Camp  V.  Bostwick 185,  186 

Camp  V.  Elston 667 

Camp  V.  Tompkins 563 

Campbell  v.  Bristol 458 

Campbell  v.  Chamberlain 427 

Campbell  v.  Cothran 450 

Campbell  v.  Erie  Railway  Co 157 

Campbell  v.  Evans 63 

Campbell  v.  Hall 411 

Campbell  v.  Kincaid 444 

Campbell  v.  Mesier 183 

Campbells  v.  Patterson 685 

Campbell  v.  Pettengill 625,  628 

Campbell  v.  Vedder 177 

Canal  Bank  v.  Bank  of  Albany. .  589,  601 

621,  642 
Canal  Commissioners,  etc.  v.  People,  712 

Canal  Co.  v.  Wheeley 738 

Candler  v.  Rossiter 374,  382.  394 

Caufield  v.  Merrick 379 

Caniff  V.  Myres 457 

Canning  v.  Williamstown 345 

Cannon  v.  Alsbury 102 

Cannon  v.  Windsor 384 

Cansee  v.  Anders 339 

Cantey  v.  Duren 674 

Cantrell  v.  Colwell 215,  288 

Capehart  v.  Carradine 726 

Capel  V.  Thornton 477 

Capp  V.  Topham 487 

Cardell  v.  McNeil 569,  599 

Carey  v.  Burtie 187 

Cary  v.  Hotailing 285 

Carey  v.  McDougald 511 

Carey  v.  Smith 1.53 

Carhart  v.  Auburn  Gas-light  Co. ...     40 

Carham  v.  Fisk 294 

Carley  v.  Dean 403 

Carlisle  v.  Ramsey 164 

Carli.sle  v.  Tindall 667 

Carlos  V.  Fancourt 548 

Carlton  v.  Bailey 106 

Carlton  v.  Felder 151 

Carman  v.  Plass 583 

Carmichael  v.  Bodfish 158 

Carmichael  v.  Buck 286 

Carmichael  v.  Pendleton 449 

Carmichael  v.  Pennsylvania  Bank . . .  620 


PAGE. 

Carnf-y  v.  Dennison 259 

Carneal  v.  Day 683 

Carnes  v.  Piatt 468 

Carpenter  v.  Buller 680 

Carpenter  v.  Rommel 689 

Carpenter  v.  Johnson 368 

Carpenter  v.  Oaks 596 

Carpenter  v.  Stevens 703 

Carpenter  v.  White 203 

Carr  v.  Card 93 

Carr  v.  Montefiore 1 18 

Carr  v.  Nat.  Security  Bank 503,  505 

Carr  v.  Rowland 596 

Carr  v.  Weld 470 

Carriugton  v.  Didier 423 

Carrel  v.  Collins 704 

Carroll  v.  Boston  Marine  Ins.  Co. . . .  358 

Carroll  v.  Charter  Oak  Ins.  Co 371 

Carroll  v.  Staten  Island  R.  R.  Co 136 

Carroll  v.  Weiler 318 

Carroway  v.  Chacey 718 

Carson  v.  Allen 383 

Carson  River,  etc.,  Co.  v.  Bassett. . . .  408 

Carstens  v.  Barnstorf 443 

Carter  v.  Collar 398 

Carter  v.  Cunningham 843 

Carter  v.  Davis 454 

Carter  v.  Graves 394 

Carter  v.  Hamilton 131,  610 

Carter  v.  Harrison 148 

Carter  v.  Hope 398 

Carter  v .  Jones 163 

Carter  V.  Smith 626 

Carter  v.  Talcott 465 

Carter  V.  Taylor 664 

Carter  v.  White 374 

Cartmell  v.   Allard 241 

Cartwell  v.  Menifee 458 

Carver  v.  Braintree  Manuf.  Co 415 

Carver  v .  Hayes 399 

Carver  v.  United  States 463 

Carvill  v.  Garrigues 400 

Carvick  v.  Vickery 591 

Cary  v.  Hotaling 406 

Case  V.  Abeel 241 

Case  V.  Berry 190 

Case  V.  Boughton 112,  701,  703 

Case  V.  Burt 621 

Case  V.  Fishback 163 

Case  V .  Hotchkiss 194 

Case  V .   Morris 506 

Casey  v .  March 455 

Cass  V.  Boston  and  Lowell  R.  R.  Co,.  241 

Cassard  v.  Hinman 266 

Castle  V.  Duryea 337 

Castner  v.  Sliker 347 

Castellian  v.  Thompson 275 

Castrique  v.  Bernabo 41 

Cate  V.  Patterson 511 

Cates  V.  McKiuney 728 

Cathcart's  Appeal 365 

Cathcart  v.  Keirnaghan 486 

Catholic   Bishop  of  Chicago  v.  Bas- 

ser 376,  383 

Catlin  V.  Bell 255 

Catlin  V.  Qunter 565 


TABLE  OF  CASES. 


xlvii 


PAGE. 

Catterall  v.  Hindle 284 

Caul  V.  Gibson 105 

Caulkins  V.  Fry 671 

Causee   v.  Anders 346 

Cave  V.  Hall   567 

Cawthon  v.  Coppedge 205,  206,  207 

Cayuga  Bridge  Co.   v.  Stout 784 

Cayuga  County  Bank  v.  Bennett. . . .  629 

Cayuga  County  Bank  v.  Hunt.. .   620,  621 

Cayuga  Co.  Bank  v.  Warden,  634,  644,  645 

Cecil  V.  Cecil 210 

Cecil  v.Mix 596 

Cecil  Bank  v.  Farmers'  Bank 275 

Cedar  Rapids,  etc.,  R.  R.  Co.  v.  Stew- 
art   218 

Center  v .  Finney 161 

Central  Bank  of  Brooklyn  v.  Lang   .  541 

Central  Bank  of  Troy  v.  Heydorn. . .  704 

Central  Bridge  Corporation  v.  Abbott,  380 

Central  Bridge  Co.  v.  Sleeper 734 

Chadbourne  v.  Duncan 380 

Chadwick  v.  Upton 438 

Chaddock  v.  Vanness, 602 

Chatin  v.  Lincoln  Savings  Bank. ...  515 

Challoner  V.  Walker 693 

Cbalioon  v .  State 460 

Chaffee  v.  Jones 185 

Chambers  v.  Caulfield 200 

Chambers  v.   Davidson 273 

Chambers  v.  Hodges 434 

Chambers  v.  Lewis 405 

Chambers  v.  McCormick 481 

Chambers  v.  Neal 493 

Chamblin  v.  Schlichter 664 

Chamberlyn  V.  Delarive 571 

Chamberlain  v.  Chandler 265 

Chamberlain  v.  Sawyer 706 

Chamberlain  v.  Williamson 727 

Cbamplin  v.  Haiglit 329 

Champlain  v.  Champlain 654 

Cham  plain  and   St.  L.  R.  R.  Co.   v. 

Valentine 712 

Champenoes  v.  Fort 177 

Champion  v.  Joslyn 192,  195 

Champion  v.  Terry 605 

Chandler  v.  Belden 276 

Chandler  v.  Fulton 529,  530 

Chandlery.  Hoyle 241 

Chandler  v.  Johnson 106 

Chandlery.  State   386 

Chapin  y .  Potter 115 

Chappell  v.  Akin 658,  660 

Chappell  v.  Phillips 400 

Chapman    v.    Atlantic  and    St.  Law- 
rence R.  R.  Co 145 

Chapman  y .  Brooks 359 

Chapman  y.  Butler 153 

Chapman  v .  Haley 364 

Chapman  v.  Keane 647 

Chapman  v.  Lathrop 698 

Chapman  v.  N.  Y.  Cent.  R.  R.  Co.  287,  304 

Chapman  y.  Pickersgill 140 

Chapman  v.  Phillips 450 

Chapman  v.  Rich 384 

Chapman  y.  Robertson 130 

Chapman  v .  Rose 5G6 


Chapman  y.  Searle 576 

Chapman  v.  White 503,  505,  623 

Chappedelaine  y.  Deckenaux 196 

Charlton  v.  Lay Ill 

Charleston  v .  Stacy 388 

Charlton  v.  Wright 349 

Charnley  y.  Dulles 511 

Charles  v.  Dana 389 

Charles  y.  Hoskins 691 

Charles    River    Bridge    v.     Warren 

Pridge 124,  731 

Chartiers  and  Robinson  Turnpike  Co. 

V .  McNamara  447 

Chace  v .  Hinman   696 

Chase  v .  Barrett 163 

Chase  v.  Bradley 122,  123 

Chase  v.  Bridge  Co 734 

Chase's  Exr.  v.  Burkholder 106 

Chase  y.  Elkins 434 

Chase  v.  Ewing 205,  206,  207 

Chase  y.  Lockerman 351,  353 

Chase  v.  Sutton  Manuf.  Co 737 

Chastain  v.  Bowman 214 

Chattield  v.  Wilson 36 

Chatham  v.  Brainerd 709 

Chatham  y.  Niles 196 

Chautauqua  Co.  Bank  v.  Davis 596 

Chautauque  Bank  v.  Risley 43 

Chauncey  v.  Yeaton 406 

Cheek  v.  Roper 631 

Cheeseborough  v.  Millard. .  .183,  353,  353 

Cheever  v.  Merrick 438 

Cheney  v.  Beals 534 

Chenery  v.  Goodrich 139 

Cherry  v.   Long 486 

Cherry  v.  Monroe 155 

Cherr'y  v.  Slade 714 

Cherry  v.  Stein 396 

Chenango  Bridge  Co.  v.  Lewis 731 

Chester  v.  Wheelwright 177 

Chesapeake  &  Ohio  Canal  Company  v. 

Knapp 393 

Cheongwo  v.  Jones 403 

Chew  V.  Morton 718 

Chevallier  v.  Wilson 104 

Chewing  v.  Singleton 164 

Chicago  &  Great  Eastera  R.  R.  Co.  v. 

Dane 84,     86 

Chicago  v.  Sheldon 124 

Chick  v.  State 336 

Chidsey  v.  Canton 733 

i  Chidsey  v.  Porter 230 

Chilcott  y.  Trimble '. 108 

Childs  v.  Davidson 540 

Childs  v.  Delaney 469 

Child  V.  Dwight 436 

Child  y.  Eureka,  etc..  Works. . .  .402,  436 

Childs  V.  Monins 588 

Child  V.  Morley 375 

Child  y.  Starr 711 

Child  V.  Sun  Mutual  Ins.  Co 129 

Chinn  v.  Chinn 253 

Chinoweth  v.  Haskell 715 

Chilton  v.  People 675 

Chirac  v.  Reinicker 469,  473 

Chisholm  v.  Gadsden '. 141 


xlviii 


TABLE  OF  CASES. 


PAGE. 

CMtteuden  v.  French 131,  127 

Cliitteiiden  v.  Hobbs 415 

Cholinondeley  v.  Clinton 465 

Chouteau  v.  Leech 5;}1 

Christie  v.  Sawyer. 437,  453 

Christman  v.  Commonwealth 691 

Christmas  v.  Russell 363 

Ciiristopherson  v.  Bare 333 

Christy's  Appeal 205,  210 

Christy  v.  Douglas 461 

Christy  v.  Smith 267 

Christy  v.  Price 389 

Chryt<ler  v.  Reuois 546 

Church  V.  Feterovv 403 

Church  V.  Frost 41 

Church  V.  Mumford 379 

Churchman  v.  Smith 190 

Churchliill  V.  Abraham 437 

Churchi  11  v.  Hulbert 341 

Churchill  v.  Reamer 126 

Chubbuck  v.  Veruam 198 

Cipies  V.  Blair 35^ 

Cincinnati,   etc.,  R.  R.  Co.  v.  Pontius,  531 
Cincinnati,  etc.,  R.  R.  Co.  V.  Waterson  305 

Citizens'  Bank  v.  GrafBin 5oO 

Citizens'  Bank  v.  Howell   517 

City  Bank  v.  Bangs 101 

City  Bank  v.  Farmers',  etc.,  Bank. . .   512 

City  Discount  Co.  v.  McLean 178 

City  Bank  of  New  Haven  v.  Perkins,  157 
City  of  Boston  v.  Richardson. . .  713,  714 

City  Council  v.  Patterson 476 

City  of  Galveston  v.  Menard 71 Q 

City  V.  Lamsou 684,688 

Claasen  v.  Shaw 683 

Clafiln  V.  Farmers  &  Citizens*  Bank,  624 

Claire  v.  Bailey 154 

Clap  V.  Cof ran 688 

Clap  V.  Day 404 

Clark  V.  Adams 323 

Clark  V,  Arnold 416 

Clark  V.  Bank  of  Wheeling -.241,  266 

Clark  V.  Barnwell 525 

Clark  V.  Citv 688 

Clark  V.  Clark 655,  661 

Clark  v.  Covenant  Ins.  Co 663,  666 

Clarke  v.  Courtney 337 

Clay  V.  Crowe 165 

Clark  V.  Cushman 476 

Clark  V.  Fairchild 196,  385 

Clark  V.  Farmers'  Manuf.  Co. . . .  561,  574 

Clark  V.  Foot 161 

Clark  V.  Ford 153 

Clark  V.  Garther.    413 

Clark  V.  Gaylord 93,  101 

Clark  V.  Gilbert 399 

Clark  V.  Gray 393,  398 

Clark  V.  Holliday 457 

Clarke  v.  Johnston 353 

Clark  V.  Keliher 304 

Clark  V.  Lowell  &  Lawrence  R.  R.  Co.,  875 

Clark  V.  Mayor,  etc. ,  of  N.  Y 404 

Clarke  Nat.  Bank  v.  Bank  of  Albion,  613 
Clark  V.  New  Jersey  Steam  Nav.  Co.,  431 

Clark  V.Pratt..    416 

Clark  V.  Randall 438 


PAGE 

Clark  V.  Ray 680 

Clark  V.  Reed 166,  394 

Clark  V.  Rogers 363 

Clark  V.  Roop 384 

Clark  V.  Savage 189 

Clark  V.  Shee 285 

Clark  V.  Sigourney 92,     94 

Clark  V.  Sisson 563,  608 

Clark  V.  Small 110 

Clark  V.  Smythies .'. .  487 

Clark  V.  Thompson 370 

Clark  V.  Todd 403 

Clark  V.  Van  North  wick 233 

Clark's  Ex'rs.  v.  Van  Reimsdyck  ....  334 

Clark  V.  Wagoner 715 

Clark  V.  Ward 420 

Ciarke  v.  Whitaker ,   599 

Clark  V.  Wilson 308 

Clarkson  v.  De  Peyster .  060 

Clason  V.  Baily 113,  554 

Classon  v.  Stearns 586 

Claussen  v.  Lafranz 187 

Clary  v.  Hoagland  45 

Clay  V.  Spratt 334 

Clayton  v.  Anthony 681 

Clayton  v.  Gosling 558 

Clemans  v.  Caldwell 252 

Clements  v.  Marston 106 

Clements  v.  Moore 725 

Clemson  v.  Davidson 276,  363 

Cleworth  v.  Pickford 398 

Cleveland,  etc.,  R.  R.  Co.  v.  Bartram,  345 

Cleveland  v.  Barrows 37 

Cleaveland  v.  Stewart 238,  339 

Clealand  v.  Walker 259 

Clifton  V.  Burt 353 

Clinton  Bridge 730 

Close  V.  Miller 395 

Closson  V.  Stearns 554 

Cloudas'  Ex'r.  v.  Adams 350 

Clough  V.  Brown 491 

Cloustan  v.  Shearer 152,  664 

Clussman  v.  Merkel 441 

Clute  v.  Robinson 366 

Clute  V.  Small 557,  55.S 

Clyde  V.  Simpson 338 

Cobb  V.  Arundell 193 

Cobb  V.  Commonwealth  . , , 684 

Cobb  V.  Howard 534 

Cobbs  V.  Fountain 123 

Cobbett  V.  Hudson 447 

Coburn  v.  Odell 563,  700 

Cock  V.  Richards 734 

Cock  V.  Weatherby 300 

Cochran  v.  Chittwood 233 

Cochran  v.  Newton  226 

Cochran  v.  Paris 357 

Cochran  v.  Tatura 389 

Cochrane  v.  Johnson 487 

Cockrill  v.  Kirkpatrick 254 

Cockerhani  v.  Nixon 313 

(Jodman  v.  Jennings 388 

Coddington  v.  Gilbert 423 

Codrington  v.  Parker 660 

Cod  wise  v.  Gelston 350 

Cody  V.  Quarterman 357 


TABLE  OF  CASES. 


xlix 


PAGE. 

Coffin  V.  Anderson 513 

Coffin  V.  Coffin 345 

Coffin  V.  Ewer 491 

Coffin  V.  Hensliaw 504 

Coffin  V.  Landis 289 

Coffee  V.  Meig-s 404 

Coggs  V.  Bernard 496 

Coggill  V.  American  Exchange  Bank,  589 

601 

Coggswell  V.  Baldwin 307 

("oggesliall  V.  Coggesliall ,  405 

Cohen  v.  Myers 659 

Cohen  v.  Payet 270 

Cohen  v.  Sharp 666,  667 

Coit  V.  Milliliin 675 

Coit.  V.  Sheldon 448 

Coit  V.  Wallace 722 

Colbert  v.  Daniel 354 

Colboru  V.  Pomeroy 393 

Col  borne  v.  Stockdale 699 

Colburn  v.  Wood  worth 269 

Colby  V.  Norton 719 

Colcock  V.  Ferguson 671 

Cold  Spring  Iron  Works  v.  Tolland,  711 

Coles  V    Anderson 154 

Coles  V.  Coles 880 

Cole  V.  Cottingham 724 

Cole  V.  Drew 148 

Cole  V.  Haynes 709 

Cole  V.  McLellan 456 

Cole  V,  Reynolds 19 

Cole  V.  Reilly 681 

Cole  V.  Robins 671 

Cole  V.  Turner 335,  336 

Coleman  v.  Cooke 550 

Coleman  v.  Eyre 102 

Coleman  v.  First  Nat.  Bank  of  Elmira,  239 

259,  260 

Coleman  v.  Frazier 267 

Coleman  v.  Lansing 609 

Coleman  v.  Stark 233 

Coleman  v.  White 201 

Colgin  V.  Henley 404 

Collen  V.  Wright 257,  258 

Collender  v.  Dinsmore 532 

Collinsou  V.  Newcastle  &  Darlington 

Railway  Co .    42 

Collins  V.  Banbury 115 

Collins  V.  Barksdale 654,  655 

Collins  V.  Blantern 700 

Collins  V.  Buckeye    Ins.  Co 257,  260 

Collins  V.  Case. 246 

Collins  V.  Lincoln 546 

'Collins  V.  Westbury 671 

CoUingbourne  v.  Mantell 398 

Colley  V.  Merrill 271 

Collyer  v.  Fallon 361 

Colquit  V.  Bonner 366 

Colson  V.  Wilson 423 

Colt  V.  Gregory 456 

Colt  V.  McMahan 525 

Columbet  V    Pachees 718 

Colville  V.  Besly Ill 

Colvin  V.  Holbrook Ill,  262.  263 

Colwell  V.  Lawrence 131 

Combs  V.  Scott 233 

G 


PAGE. 

Comeggs  V.  Vasse 361 

Commercial  Bank  v.  Benedict 166 

Commercial,  etc.,  Bank  v.  First  Nat'l 

Bank ,. . .   508 

Commercial     Bank     of      Albany    v. 

Hughes.... .'....  628 

Commercial  Bank  v.  Jones 233 

Commercial  Bank  of  Clyde  v.  Mar, 

Bank 517 

Commercial  Bank  v.  Nolan 102,  515 

Commercial    Bank   of   Lake  Erie    v. 

Norton 230,  236,  243 

Commercial  Bank  v.  Norton 610 

Commercial  Bank  of  Albany   v.  Ten 

Eyck '. ...  509,  520 

Commercial  Bank  of  Pennsylvania  v. 

Union  Bank  of  New  York 251 

Commercial    Bank   of    Kentucky  v. 

Varnum 560,  641 

Commercial  Bank  of  Buffalo  v.  War- 
ren   219 

Commercial  Bank  v.  Wood 391 

Commissioners,  etc.  v.  Beckwith. . . .  708 

Commissioners,  etc.   v.  Gherky 197 

Commissioners  v.  Harrington 379 

Commissioners,  etc.  v.  McCann 150 

Commissioners  v.  Purdy 457 

Commissioners  v.  Way 684 

Commissioners  v.  Younger 438 

Common  Council   of    Alexandria  v. 

Corse 691 

Commonwealth  v.  Alger ....   710 

Commonwealth  v.  Beaman 299 

Commonwealth  v.  Berger 493 

Commonwealth  v.  Chace 299 

Commonwealth  v.  Charlestown 710 

Commonwealth  v.  Eyre 333 

Commonwealth  v.  Fisher 736 

Commonwealth  v.  Gibbs 448 

Commonwealth  v.  Harnden 478 

Commonwealth  v.  Holmes 691 

Commonwealth  v.  Judges 433 

Commonwealth  v.  Kendig 679 

Commonwealth  v.  Lakeman 339 

Commonwealth  v.  Lohey 202, 

Commonwealth  v.  Maun 334 

Commonwealth  V.  Meriam 202 

Commonwealth  v.  Mitchell 343 

Commonwealth  v.   Newburyport 

Bridge 731,  732 

Commonwealth  v.  Newell 336 

Commonwealth  v.  Newton 434 

Commonwealth  v.  Passmore 480 

Commonwealth  v.  Power 344 

Commonwealth  v.  Randall 342 

Commonwealth  v.  Ronald 455 

Commonwealth  v.  Ruggles 332,  335 

Commonwealth  v.  Sessions    of    Nor- 
folk   345 

Commonwealth  v.  Thompson 342 

Commonwealth  v.  Walton 722 

Commonwealth  v.  White 333 

Commonwealth  v.  Wliitney 490 

Compton  V.  Jones 98,  370 

Compton  V.  Richards 294 

Comstock  V.  Comstock 250 


TABLE   OF  CASES. 


PAGE. 

Comstock  V.  Hannah 615 

Comstock  V.  Johnson 156 

Concord  Bank  v.  Bellis  671 

Concord  Bank  v.  Gregg 266 

Conklin  v.  Havens 301 

Condit  V .  Baldwin 233 

Condit  V.  Blackwell 250 

Cone  V.  Donaldson 450 

Coney  v.  Saunders 290 

Congar  v.  Chicago  and  Northwestern 

R.  R.  Co 232 

Congar  v.  Galena  and  Chicago  Union 

R.  R.  Co 223 

Conkey  V.  Bond 246 

Conklin  v.  Harris 419 

Conkling  v.  King 570 

Conley  v.  Burson 215 

Conn  V.  Thornton 550 

Connecticut  Mutual   Life   Insurance 
Co.  V.  Cleveland,  etc.,  R.  R.  Co.,  544,  095 

Conoon  v.  Van  Mater 366 

Conrad  v    Atlantic  Insurance  Co.. . ,  529 

Conroy  v.  Gale 739 

Couroy  v.  Warren 567 

Conroe  v.  Birdsall 671 

Considerant  v.  Brisbane 279 

Continental  Bank  v.  Bank  of    Com- 
monwealth   508 

Conway  v.  Cutting 363 

Conway  v.  Nichols 202,  204 

Con  well  V.  Voorhees 267 

Conyngham's  Appeal 180 

Cooke  V.  Barr 117 

Cook  V.  Beal 337 

Cook  v.  Bradley 108 

Cooke  V .  Colehan 550 

Cook  v.  Combs 131 

Cooke  V.  Davis 546 

Cook  V.  Ferral's  Adm'rs. . .   119,  559,  579 

Cook  V.  Litchfield 644 

Cook  V.  Martin 628 

Cook,  Woodbridge  v.  Perkins   359 

Cook  V.  Ritter 464 

Cook  V.  Satterlee 547,  548 

Cook   V.  The  Champlain  Transporta- 

•     tionCo 161 

Cook  V.  Vimont 400 

Cooley  V.  Betts  253 

Cooley  V.  Willard 231 

Coolidge  V.  Ruggles 356,  370 

Coombs  V.  Jordon 329 

Coombs  V.  Newtoti 700 

Coon  V .  S  wan  469 

Coon  V.  Smith 719 

Coonrod  v.  Coonrod 330 

Coonley  v.  Anderson 110 

Cooper  V.  Bailey 591 

Cooper  v.  Berry 379 

Cooper  V.  Dedrick 583 

Cooper  V.  Hamilton 456 

Cooper  v.  McCrimmin 105 

Cooper  V.  McJunkin 342 

Cooper  V.  Rankin 218,  234 

Cooper  V.  Williams 736 

Cooper  V.  Wray 207 

Coosa  River  Steamboat  Co. v.  Barclay,  522 


PAQB. 

Coote  V.  Bank  of  United  States 504 

Coote  V.  Bertz 204 

Coover  v.  Davenport 727 

Cope  V.  Albinson 71 

Cope  V.  Dodd 129 

Copeland    v.   Merchantile    Insurance 

Co 237,247,479 

Coppin  V.  Walker 281 

Copes  V.  Matthews 262, 393 

Coquillard  v.  Suydam 179 

Corbin  v.  American  Mills 273 

Crosby  v.  Bean 156, 175 

Cordova  v.  Knowles 225 

Cordray  v.  Mordecai 123 

Corey  v.  People 55, 339 

Corey  v.  Russell 456 

Corey  v.  White 601.  647 

Carl  V.  Riggs 391 

Cornell  v.   Moulton 640, 641 

Corning  v.   Southland 256 

Corning  v.  Strong 224 

Corning  v.  Troy  Iron  Factory,  652,  718, 719 

Cornish  v.   Willson 351 

Corser  v.  Craig 371 

Cortelyou  v.  Van  Brunt 708,710 

Cosgrove  v.  Ogden 227 

Coater  v.  Watson 446 

Costin  V.  Baxter 196 

Costigan  v.  Mohawk  &  Hudson  R.  R. 

Co 141,269 

Cottom   V.    Holliday 349,  258 

Cotton  V    Lake 400 

Cotton  V.  Seavey 715 

Cotton  V.  Sharpstein 461 

Cotten  V.   Williams 362 

Cottrill  V.  Conklin 596 

Cottrell  V.  Jones 36, 143 

Cottle  V.  Payne 698, 704 

Couch  V.  Terry 182 

Coughtry  v.  Globe  Woolen  Co. ,   136, 138 

Couling  V.  Coxe 134 

Coulter  V.  Richmond. 601 

Coulter  V.  Robertson 106 

County  of  Beaver  v.  Armstrong.    ..     688 
Counsel  v.  Vulture  Mining  Co.,  etc. .   579 

Courcier  v.  Ritter 243 

Courrier  v.  Cleghorn 413 

Coursey  v.  Covington 389 

Coursin  v.  Tedlies  Adm'r 538 

Cousins  V.  Paddon 397 

Couscher  v.  Tuolan 173 

Courtney  v.  Carr 423 

Courtney   v.   New  York   City   Insur- 
ance Co 371 

Courtenay  v.  Earle 135 

Couturier  v.  Hastie Ill 

Coutts  V.  Graham 294 

Cover  V.  Davenport   735 

Covenhoven  v.  Shuler 655, 661 

Coventry  v.  Barton 273, 487 

Coventry  v  .(iladstone 539 

Covington  v.  Lide 404 

Covin  V.  Hill 532,533 

Covin  V.  Phy 444 

Coward  v.  Baddleley 336 

Cowles  V.  Balzer 317 


TABLE  OF  CASES. 


li 


PAGE. 

Cowles  V.  Kidder 362 

Cowing  V.  Altman 624 

Oowie  V.  Storm 538 

Cowper  V.  Clark 651, 652 

Covvperthwaite  v.   Slieffeld 622,634 

Cox  V.  Clift 667 

Cox  V.  Freedley 708 

Cox   V.   Hoffman 230 

(^ox  V.  Livingston 460 

Cox  V.  Mattliews 294 

Cox  V.   Middland   Counties  Rail. Co.  226 

C.)X  V.  Milner 422 

Cox  V.  Peterson 53 1 

Cox  V.  Reinhardt 413 

Cox  V.  Robinson 426 

Cox  V.  Smith    512 

Cox  V.  Sprigg 369 

Cox  V.  Sullivan 445 

Cox  V.  Tyson 656 

Cox  V.  Vanderkleed 345 

Coxe  V.  Phillips 142 

Coxe  V.  Whitney 343 

Coyle  V.  Cleary 718 

Coyle  V.  Fowler 673 

Coyle  V.  Smith 628 

Craft  V.  Fleming 598 

Craft  V.  Lathrop 650 

Craig  V.  Ely 436 

Craig  V.  Missouri 400 

Craig  V .   Parkis 365, 584 

Craig  V.  Twomey 37, 143 

Craig  V.  City  of  Vicksburgh 688 

Craig  V.  Wells 123 

Craker  v.  R.  R 265 

Cram  v.  Bangor  House. ...    379 

Cram  v.  Sherburne 634 

Cramer  v.  Perry 627 

Crandall  v.  Schroeppel 603 

Crane  v.  Grassman 394 

Crane  v.  Hancks 167 

Cranmer  v.  Graham 402 

Cranston  v.  Plumb 656 

Cratchley  v.  Mann 542 

Craven  v.  Ryder 526 

Craver  v.  Wilson 701 

Cravath  v.  Plympton 405, 409 

Crawford  v.  Bank  of  Wilmington  . . .   513 

Crawford  v.  Foster 680 

Crawford  v.  Mc&issack    472 

Crawford  V.  Morrell 403 

Crawford  v.  Summers 167 

Crawshaw  v.  Roxbury 100 

Creamer  v.  Stephenson 693 

Creaths    Adm'r  v.  Sims 153, 156 

Creed  v.  Lancaster  Bank 209 

Crewe  v.  Crewe 203 

Creighton  V.  City  of  Toledo 74 

Crevier  v.  Mavor,  etc.,  of  New  York,  665 

Cridler  v.  Curry 583 

Crichfield  v.  Porter 459 

Crill  V.  City  of    Rome 652 

Crittenden  v.  Strother 471 

Crocker  v.  Higgins 104 

Crocker  v.  New  London,  Williamantic 

&  Palmer  R.  R.  Co 84 

Crocker  v.  Pierce 422 


PAGE. 

Crocker  v.  Whitney 359 

Crockett  v.  Dodge 184 

Crocker  v.   Rogers 152 

Crosby  v.  Berger 469, 472 

Crosby  v.  Covington 205 

Crosby  v.  Huston 130 

Cross  V.  Haskins 227 

Cross  V.   Lewis 292 

Crosley  v.  Roub 594 

Crossman  v.  Lindsley 414 

Crompton  v.  Pratt 177,  178 

Cromwell  v.  Hewitt 597,  599 

Cromwell  v.  Lovett 568 

Crooke  v.  Andrews 666 

Crocker  v.  Bragg 713 

Crowv.  Mechanics  and  Traders'  Bank,  516 

Crow  V.  Rogers   ; .  375 

Crow  V.  State 332 

Crowder  v.  Austin 484 

Crowe  v.  Clay 165 

Crowell  V.  Bebee 719 

Crowell  V.  Crispin 261 

Crowell  V.  Maughs 719 

Cruchley  v.  Clarence 542 

Cruger  v.  Armstrong 567 

Cruger  v.  McLaury 181 

Cruikshank  v.  Brown 393 

Cruikshanks  v.  Robarts 660 

Cruzan  v.  Smith 216,  227 

Cryden's  Appeal 329 

Cryst  V.  Cryst 587 

Cubitt  V.  Porter 713 

Culver  V.  Bigelow ....  282 

Culver  V.  Blake 377 

Culley  V.  Hardenburgh 94 

Cumberland  Coal  and  Iron  Co.  v.  Hoff"- 

man  Steam  Coal  Co 45 

Cuming  v.  Brown 529 

Cummins  v.  Cassilly 218 

Cummins  v.  McLain 266,  461,  464 

Cummins  v.  White 174 

Cummings  v.  Brown 527 

Cummings  v.  Dennett 90 

Cummings  v.  Gaun 275 

Cummings  v.  Gassett 399 

Cummings  v.  Harris 276 

Cummings  v.  Henry 671 

Cummings  v.  Klapp 392 

Cummings  v.  Mayer  etc.,  of  Brooklyn  152 

Cummings  v.  Noyes 405 

Cummings  v.  Shand 148 

Cummings  v.  State  of  Missouri 432 

Cumpston  v.  McNair 591 

Cunliffe  v.  Whitehead 597 

Cunningham  v.  Bucklin 147 

Cunningham  v.  Freeborn 364 

Cunningham  v.  Kimball 404 

Cunningham  v.  Soules 260,  263 

Curra  v.  Misa 612 

Curry  v.  Rogers 105,  388 

Currant  v.  Jago 209 

Currier  v.  Currier 085 

Currier  v.  Hodgdon 370 

Currier  v.  Howard 363 

Curtiss  V.  Curtiss 187 

Curtis  V.  Feidler 382 


lii 


TABLE  OF  CASES. 


PAGE. 

Curtiss  V.Howell 118 

Curtiss  V.  Leavitt 107,498,499 

Curtis  V.  Stever 411 

Curtis  V .  United  States 261 

Gushing V.  Gore 398,510 

Cusliman  v.  Haynes 551 

Cushmau  v .  Jewell 409 

Cushmau  v.  Ryan 843,  347 

Cutler  V.  Potts 182 

Cutler  V .  Wittemore ,.  677 

Cutter  V .  Copeland • 285 

Cutter  V.  Emery 183 

•Cutter  V.  Powell,  181, 376,383, 383, 386,  399 

Cutts  V.  Guild 366 

Cutts  V .  Hussey 710 

Cutts   V.  Perkins 370 

Cuyler  v.  Stevens 632,  644 

Da  Costa  v.  Davis 704 

Da  Costa  v.  Jones 142 

Dadev.  Herbert 364 

Dagget  V .  Tallman 704 

Dahl  V .  Pross 665 

Dair  v.  United  States 677 

Dakin  v.  Demming 198 

Dale  V .  Kimpton 370 

Dale  V.  Roosevelt 702 

Dale  V.  Wood 342 

Dalton  V .  Coatsworth 164 

Dalrymple  v.  Hillenbrand 600 

Daly  v.But.  and  Drovers'  Bank,  516,  517 

Daly  V .  Grimly 144 

Dalzell  V.  Crawford 329 

Damport  v .  Sympson 150 

Dana  v .  Fiedler  121 

Dana  v.  Jackson  Street  Wharf 710 

Daniel  v.  Adams 479 

Daniel  v.  Ballard 185 

Daniel  v.  Bowles 723 

Daniel  v.  Green 175 

Daniel  v.  North 292 

Daniels  v.  Barney 253 

Daniels  v .  Bowe 695 

Daniels  v.  Kyle 506 

Daniels  v.  Wilber 192 

Danklesseu  v.  Braynard 361 

Dann  v.  Kingdom 199 

Darby  v.  Boatmans'  Savings  Inst.  . . .  515 

Darden  v.  Cowper 180 

Dart  V .  Orme 063 

Dastor  V.  Brown 119 

Daubighny  v.  Duval 277 

Davenport  v.  Gentry 358,  362 

Davenport  v.  Gilbert 644 

Davenport  v.  Peoria  Marine  and  Fire 

Insurance  Co 227 

Davenport  v.  Wheeler 196 

Davies  v.  Dodd .  .  165 

Davies  v.  Wilkinson 547 

Davies  v.  Williams 62 

Davis  v .  Barney 120 

Davis  v.  Baxter 401 

Davis  V.  Bomford 726 

Davis  V.  Campbell 322 

Davis  V.  Clarke 564,  565,  621 

Davis  V.  Commonwealth 427,  476 


PAGB. 

Davis  V .  Davis 164 

Davis  V.  Duke 211 

Davis  V.  Duke  of  Marlborough...    .   658 

Davis  V.  Garr 539 

Davis  V .  Garret 423 

Davis  V.  Gillett    683 

Davis  V.  Herndon 360 

Davis  V.  Hull 674 

Davis  V.  Judge 718 

Davis  V.  Lane 290 

Davis  V .  Lusitanian 283 

Davis  V .  Mann 63 

Davis  V .  Marshall 413 

Davis  V.  Miller 643 

Davis  V.  McCready 616 

Davis  V.  Nisbett 375 

Davis  V.  Pettit 164 

Davis  V.  liainsford    715 

Davis  V .  Saunders 161 

Davis  V.  Slagle •....• 728 

Davis  V.  Smith 467 

Davis  v:  Somerville 673 

Davis  V.  Tiernan 194 

Davis  V.  Wilson 562,  586 

Davis  V.  Winsdor  Savings  Bank 290 

Davison  v .  Robertson 560 

Davison  v.  Wilson 63 

Davidson  v.  Davidson . .   108 

Davidson  v.  Givens 673 

Davidson  v.  Lanier 43 

Davidson  v .  Owens 414 

Dawes  v .  Boylston   370 

Dawkes  v .  De  Lome  553 

Dawson  v.  Coles 363 

Dawson  v.  Real  Estate  Bank 501 

Dawson  v.  Tibbs 400 

Day  V.  Cummings 153,  175 

Day  V .  Holmes 873 

Day  V.  Noble 256 

Day  V.  Owen 265 

Day  V.  Southwell 253 

Day  V.  Welles 443 

Day  V.  Whitney 364 

Dayton  v.  Trull 571,  637 

DeArcy  v.  Lyle 344,  373 

Deans  v.  Dortch 163 

Dean  v.  Hall 596,  599 

Dean  v.  Madison 669 

Dean  and  Chapter  of   Rochester   v. 

Pierce 393 

Dearth  v.  Baker 308 

Dearborn  v .  Dearborn 460 

De  Bemer  v .  Drew 175 

Debloia  v .  Earle 134 

Decan  v.  Shipper 534,  536,  538 

Decker  V.  Fisher 299 

Decker  v.  Hassel 869 

Dedman  v.  Chiles 649 

Deering  v .  Cliapman 106 

Def ranee  v.  Austin 108 

De  Forest  v.  Frary 549 

Deg  V.  Deg 350,  351 

De  Haven  v.  Bartholomew 379 

Delaware  Insurance  Co.  v.  Delaunie,  373 
Delaware,  etc.,  Co.   v.  Pennsylvania, 

etc..  Co 738 


TABLE  OF  CASES. 


liii 


PAGE. 

Delaware  and  Hudson  Canal  Co.   v. 

Torrey 40,  148 

Delafield  v.  State  of  Illinois 230 

De  La  Hunt  v .  Higgins 633 

De  la  Vega  x.  Vianna 130 

Delius  V .  Cawthorne 676 

Demarest  v.  Willard 356,  357 

De  Marentille  v .  Oliver 333 

De  Mets  v .  Dagron 443 

Demeyer  v.  Legg 711 

Den  V.  Wright ,  716 

Den  V.  Zeller 485 

Denew  v.  Daverell -480,  487 

Denman  v .  McMaliou 206 

Denman  v.  Prince 19 

Dennett  v .  Cutts 454 

Denny,  in  re 126 

Denny  v.  Correll 318 

Denny  v.  Manhattan  Co 263,  363 

Denny  v.  Palmer 637 

Deunison  v.  Goehring 169,  309 

Dennison  v.  Story 236 

Denniston  v.  Bacon 611 

Denniston  v.  Imbrie 628 

Dent  V.  McGrath 478,  481 

Dent  V.  North   American  Steamship, 

Co 118,219 

Denton  v.  Adams 670  674 

Denton  v.  Embury 461 

Denton  v.  Noyes 430.  441,  458 

D'Ogley  V    Loveland 338 

Derby  v.  Phelps 735 

Dermott  v.  Jones,  376,  383,  383,  386,  389 

De  Rose  v.  Fay 466 

De  Bidder  v.  Schermerhorn 583 

Des  Arts  v.  Leggett 604,  605 

Des  Moines   Valley    R.    R.    Co.    v. 

Graff 103 

■  De  Soto  V.  Dickson 681 

Destrehan  v.  Destrehan 210 

Desmond  v .  Rice 604 

DeTastet  v.  Crousillant 243 

DeVeney  v.  Gallagher 731 

Devlin  v.  Chamblin    568 

Devoe  v.  Penrose  Ferry  Co 730 

Dewey  v.  Bradbury 678 

Dewee's  Estate 306 

DeWittv.  Walton 238 

De  Wolf  V.  Dearborn 424 

De  Wolf  V.  Murray 630,  63S,  638 

D'Wolf  V.  Pratt 364 

De  V.'olf  V.  Strader 470 

Dexter  v.  Arnold 198 

Dexter  v.  Norton 171,  172 

Dey  V .  Dox 395 

De  Zeng  v.  Fyfe 613 

Dezell  V .  Odell 93 

Dias  V.  Brunell     381 

Diamond  V.  Lawrence  County 688 

Dibble  v  Duncan 397 

Dick  V.  Lumsden 530 

Dickey  v.  Johnson 391 

Dickey  v .  Sleeper 685 

Dicken  v».  Neale 398 

Dickens'  Case 474 

Dickson  v .  McCoy 314 


PAGE. 

Dickinson  v.  Benham 418 

Dickinson  v.  McGraw 437 

Dickinson  v.  Winchester 380 

Dickerson  v.  Derrickson 93 

Dickerson  v.  Seelye 533,  531 

Dickerson  v.  Wason 517 

Dickermanv.  Graves 199,203 

Didier  V.  Davison 11 

Dietrich  v.  Mitchell 473 

Dillard  v.  Crocker 457 

Dillingham  v.  Smith 713 

Dillman  v.  Cox 309,  310 

Dillon  V .  Anderson 283 

Dillon  V.  Masterson. 383 

Dilly  V.  Doig 653 

Dimes  v .  Petley 63 

Dimmick  v.  Hallett 484 

Dingee  v .  Letson 400 

Dingman  v.  Myers 490,  491 

Dinsmore  v .  Duncan 543,  543 

Dinwiddle  v .  Bailey 179 

Disbrow  v .  Mills 504 

Disbrow  v .  Tenbroeck 305,  306 

Dispatch  Line  of  Packets  v.  Bellamey 

Manufacturing  Co 234 

Dittoe  V.  Cluney  . ; 206 

Diversy  v.  Kellogg 890 

Dix  V.  Cobb 356,  359 

Dixon  V.  United  States 674,  684 

Doane  v.  Broad  Street  Association...   710 

Doane  v.  Willcut 133 

Dobbins  v.  Dupree 439,  441 

Dobyns  v.  McGovern 368 

Dockray  v .  Dunn 636 

Dod  V.  National   Bank 517 

Dodge  V .  McDonnell 338 

Dodge  V.  Perkins 241,  253 

Dodson  V.  Mock 398,  303 

Dodson  V.  Simpson 328 

Dodwell  V.  Burford 336 

Doe  V .  Laming 116 

Doe  d.  Daniell  v.  Woodroffe 65  " 

Dogan  V.  Seekright 714 

Dolan  V.  Fagan 347 

Dolcher  v.  Fry 96 

Dolde  V.  Vodicka 719 

Dole  V.  Weeks 563,  586 

Dolph  V.  Ferris 308,  310 

Dollfusv.  Frosch 597 

Dollar  Savings  Bank  v.  Robb 443 

Donald  v.  Suckling 276 

Donaldson  v.  Benton 703 

Donaldson  v.  Fullei; 386 

Donaldson  v.  Kerr 485 

Donaldson  v.  McRoy 483 

Donaldson  v.  Williams 164 

Dounell  v .  Jones 427 

Doolin  V.  Ward 483 

Doolittle  V.  McCulIough 404 

Doornadv  v.  State   Bank  of   Illinois,  166 

Dorr  V.  Munsell 673,  701,  703 

Dorr  V .  Shaw 353 

Dorchester  and  Milton  Bank  v.  New 

England  Bank 344 

Dorchester   Bank   v.    New   England 

Bank 216 


liv 


TABLE  OF  CASES. 


PAGE. 

Doremus  v.  Williams 362,  368 

Dorlau  v .  Lewis 463 

Dorlau  v.  Sammis  .    701 

Dormer  v.  Fortescue 164, 186,  187 

Dormer  v.  Knight 826 

Doty  V.  Miller  270 

Doty  V.   Whittlesey 167 

Doubleday  v .  Kress 283 

Doughty  V.  O'Donnell 404 

Dougherty  v.  Western  Bank 513 

Douglass  V.  Waer 409 

Douglass  V.  Wilkeson 399,  541,  598 

Dover  v.  Portsmouth  Bridge 730 

Dowman  v .  Rust 327 

Downer  v.  Church 96 

Downer  v.  Remer 631 

Downey  v.  Tharp 366 

Downing  v.    Backenstoes. 562 

Downing  v .  Herrick 147 

Downing  v.  Major 466 

Downing  v.  Roberts         228 

Downing  v.  Wherrin 663 

Downes  v.  Bank  of  C'harlestown 504 

Downes  v.  Phoenix  Bank 254,  502 

Dow  V .  Cheney 423 

Dows  V.  Cobb 524,  533 

Dows  V.  Green  . .   223,  521,  522,  727,  728 

Dows  V.  Rush 522,  529 

Dows  V.   Perrin 522,  523,  528 

Doyle  V .  Knapp 91 

Doyle  V.  Lord 295 

Doyle  V .  Sleeper     422 

Dozier  v.  Freeman 227,  240 

Drake  v.  Drake 400 

Drake  v .  Jones 669 

Drake  V.  Rogers 556 

Drakely  v.  Gregg 233 

Draper  v.  Pattina 112,  554 

Dra],    r  V.  Randolph 377,  398 

Draughan  v.  Bunting 104 

Drayton  v.  Thompson 367 

Dredell  v.  Barber 680 

Dressor  v.  Ainsworth 110 

Dresser  v .  Blair  347 

Dresser  v.  Dresser 379 

Dresser  v .  Norwood 232 

Drew  V.  Swift 715 

Drexel  &  Co.    v.  Raimond 254 

Drinkwater  v.  Goodwin 275,  281 

Drink  water  v.  Tebbits 635 

Driscoll  V.   West  Bradley  and  Cary 

Manufacturing  Co 500 

Drown  v.  Smith 403 

Drury  v.  Hooke 724 

Drury  v.  Smith 512 

Duberly  v.  Gunning 200,  203 

Duble  V.  Batts 88 

Dubois  V.  Beaver 713 

Dubois  V.  Delaware,  etc.,  Co 384 

Dubois  V.  Doubleday 387 

Ducett  V.  Cunningham 435 

Dudley  v.  Beck 473 

Dudley  v.  Bosworth 208 

Dudley  V.  Mayhevv 42,  49,     50 

Duffy  V .  Calvert 327,  329 

Duffy  V .  Hobsou 225 


PAQB. 

Dugan  V.  United  States 597 

Duguid  V.  Edwards 229 

Duke  of  Norfolk  v.  Germaine. .   202,  203 

Duke  of  Norfolk  v.  Meyers 650 

Dumpily  V .  Kliensmith 659 

Dunbar  v.  Johnson 196 

Dunbar  v.  Tyler 628 

Duncan  v.  Berlin 505 

Duncan  v.  Commonwealth 344 

Duncan  v .  Helm 177 

Duncan  v.  Lyon 173,  175 

Duncan  v.  Niles 258 

Duncan  y.  Wickliffe 411 

Dunckle  v.  Kocker 310 

Duncombe  v.  Cafe 481 

Dunlap  V.  Glidden 150 

Dunlap  V.  Snyder 298 

Dunlap  V.  Stetson 711 

Dunlop  V .  Higgins 86 

Dunlop  V.  Richards 247 

Dung  V .  Parker    258 

Dunham  v.  Williams 709 

Dunklin  County  v.  Clark 662 

Dunklin  v.  Wilkins 360 

Dunn  V .  Amos 470 

Dunn  V.  Rector,  etc.,  of  St.  Andrews,  392 

Dunn  V.  Snell 362 

Dunning  v.  Humphrey 426,  427 

Dunning  v.  Roberts     264,  287 

Dunphy  v.  Kleinsmith 9 

Dupays  v.  Shepherd 622 

Dupont  V.  Mount  Pleasant  Ferry  Co.  279 

Dupont  V.  Wertherman 234 

Durant  v.  Einstein 180,  187 

Durel  V .  Boisblanc 295 

Durborrow  v.  McDonald 527 

Durdon  v,  Gaskell 378 

Durham  v.  Goodwin 317 

Durham  v .  Price 627 

Durkee  v.  Leland ■ 471 

Durkee  v.  Marshall 119,  559,  5 id 

Durkee  v.  Vermont  Central  Railroad 

Co 89,  270 

Durkin  v.  Cranston 560 

Durst  V.  Burton 266,  287 

Duryea  v.  Whitcomb 173 

Dusar  v.  Perit 243,  256 

Dutch's  Appeal 207,  208 

Dutcher  v.  Porter 193 

Dutcliess  Cotton  Manufacturing  Co. 

V.Davis 377,  388,  547 

Dutton  V .  Strong 712 

Dutton  V.  Wilhier 249 

Duvall  V .  Farmers'  Bank 499,  627 

Dwight  V.  New  York  Central    Rail- 
road Co 242 

Dwight  V.  Simon 464 

Dyckman  v.  Valiente 180,  217 

Dyer  v.  Burnham 357 

Dyer  v.  Tuscaloosa  Bridge  Co 731 

Dyer  v.  Wilbur .' 379 

Dygert  v.  Bradley 337 

Dygert  v.  Schenck 731,  732,  733 

Eagle  Bank  v.  Hathaway 631 

Eanies  v.  Salem  and  Lowell  R.  R. . .   305 


TABLE  OF   CASES. 


Iv 


PAGE. 

Earhart  v.  Youngblood 312 

Earle  v.  Grout 469 

Earl  of  Bath  v.  Slierwin 650 

Earl  V .  Van  Alstine 308 

Earp  V.  Cummins 270 

East  Hampton  v .  Kirk 710 

East  Haven  v.  Hemingway 712 

East  River  Bank  v.  Qedney 619 

East  River  Bank  v.  Kennedy 439 

East  India  Co.  v.  Boddam,   162,  163,  167 

Eastman  v.  Waterman 491 

Eastman  v.  Wright 360 

Eastwood  V.  Bain 621 

Eastwo'od  V.  Kenyon 108,  397 

Eaton  V.  Lambert 110 

Eaton  V.  Lyon 116 

Eaton  v.  Smith 115, 122 

Eaton  V.  Weldon 254 

Eaton  V.  Welton 178,  252 

Eaton  V.  Winne 307 

Eaves  v.  Henderson 610 

Ebner  v .  Bradford 414 

Ebrand  v.  Dancer 209 

Eccles  V.  Stevenson 460 

Eckman  v.  Eckman 664 

Eddy  V.  Cochrane 492 

Eddy  V.  Herrin 671 

Eddy  V.  Jump 64f> 

Eddy  V.  Stanton 584 

Edelin  v.  Sanders 67!) 

Edgell  V.  Day 482 

Edgerton  v.  Huff 737 

Edgertonv.  Thomas 214,231 

Edis  V.  Bury 565 

Edie  V.  East  India  Co 591,  597 

Edmunds  v .  Groves 611 

Edmundson  v.  Penny 391 

Edmonstone  v.   Hartshorn 251 

Edsell  V.  Briggs 151,  184 

Edson  V.  Fuller 98,  622 

Edson  V.  Weston 400 

Edwards  v.  Campbell 587 

Edwards  V.  Crock 202 

Edwards  v.  Dick 600 

Edwards  v.  Edwards 285 

Edwards  v.  Goldsmith 115,  116,  402 

Edwards  v.  Hodding 481 

Edwards  v .  Osgood 490 

Edwards  v.  Parkhurst 369 

Edwards  v.  Southgate 530 

Egan  V.  Lumsden 419 

Earerton  v.  Fulton   National  Bank. . .   503 

Ehle  V.  Judson 109,  269 

Eicke  V.  Meyer 270 

Eichelberger  v.  Finley 510,  628 

Einstein  v.  Holt 237,  257 

Eitel  V.  Bracken 866 

Elam  V.  Johnson 453 

Eland  v.  Eland 330 

Elder  v.  Burns 711 

Elder  v.  Warfield 389 

Eidridge  v.  Adams 9,    31 

Eldridge  v.  Hill 649,  650,  651 

Eidridge  v.  McNulty 447 

Eldridge  v.  Smith 663 

Eidridge  v.  Walker 250 


PAGK. 

Elford  V.  Teed 620 

Elkins  V.  Parkhurst 700 

Elkinton  V.  Fennimore 385 

Ellicott  V.  Peterson 108 

Elliot  V.  Cox 275 

Elliott  V.  Jackson 406,  412 

Elliott  V.  McClelland 452 

Elliott  V.  Merryman 328.  329 

Elliot  V.  Poston 351 

Ellington  v.  Moore 416 

Ellis  V.  Brown 582,  596 

Ellis  V.  Craig 694 

Ellis  V .  Duncan 144 

Ellis  V.  Durham 155 

Ellis  V.  Henry 379 

Ellis  V.  Linck 503 

Ellis  V.  Loftus  Iron  Co 308,  310 

Ellison  V.  CoUingridge 550 

Ellsworth  V.  Campbell 458 

Elniendorffv.   Lansing 655 

Elmore  v.  Brooks 264,  265 

Elsam  V.  Fawcet 204 

Elsee  V.  Gatward 290,  375 

Eltham  v.  Kingsman 143 

Elting  V.  Vanderlyn 97 

El  well  V.  Chamberlain 283 

Elwell  V.  Dodge 586 

Ellwell  V.  Martin 407 

Elwell  V.  Shaw 237 

Ely  V.  Cooke 453 

Ely  V.  Harvey 435,  443 

Ely  V.  Kilborn 609,  610 

Ely  V.  McKnight 364 

Ely  V.    Wilcox 664 

Emery  v.  Estes 90 

Emery  v.  Fichout 177 

Emery  v.  Hoyt 671 

Emery  v    Lawrence 358 

Emery  v.  O wings .   115 

Emmet's  Case . 455 

Emmons  v.  Cairns 665 

Enfield  Toll  Bridge  Co.  v.  H.  &  N. 

H.  R.  R.  Co 729 

England  v.  Davidson 101 

English  V.  McNair 126 

Eno  V.  Del  Vecchio 144 

Enos  V.  Hamilton     243 

Ensign  v.  Kellogg 356.  357 

Episcopal  Church  v.  Wiley 487 

Epler  V.  Funk 594,  595 

Erie  City  v.  Swingle 730 

Erie  Railway   Co.  v.  Union   etc..  Ex- 
press Co 106 

Ernst  V .  Bartle 395 

Erwin  v.  Blake 221,  441,  443 

Erwin  v.  Downs 600 

Erwin  v.  Sanders 609 

Eshleman's  Appeal 205 

Eshleman  v.  Lewis 249 

Eskridge  v.  Glover 103 

Espy  V.  Bank  of  Cincinnati   508 

Espy  V.  Jones 723,  728 

Esses  Mining  Co.  v.  Bullard 493 

Estate  of  the  Bank  of    Pennsylvania,  514 

Estes  V.  Stokes 254 

Esty  V.  Wilmot 340 


Ivi 


TABLE  OF   CASES.- 


PAGE. 

Etchberry  v.  Leveille 346 

Evans  v.  Collins 140 

Evans  v.  Edmonds 139 

Evans  v.  EUis 453 

Evans  v.  Hudson 701 

Evans  v.  Kittrell 130 

Evans  v.  Root 242 

Evans  v.  Sanders 119,  121,  124 

Evans  v.  Saul 417 

Evans  v.  Terry 387 

Evans  v.  Verity 193 

Evans  v.  Watrous 241,  459,  460 

Evans  v.  Wells 237 

Evart  v.  Cochrane 294 

Everts  v.  Everts 347 

Evertson  v.  Booth 353 

Evertson  v.  Miles 378 

Everett  v.  Gray 376 

Everett  v.  Vendyres 593 

Evrit  v.  Bancroft 278,  280 

Everit  v.  Strong 593 

Everheart  v.  Searle 248,  271 

Ewer  V.  Corbet 338 

Ewer  V.  Jones 134 

Ewing  V.  Burnett 126 

Ewing  V.  Medlock 393 

Excelsior  Fork  Co.  v.  Lukens 411 

Exchange  Fire  Ins.  Co.  v.  Delaware, 

etc.,  Co 738 

Exchange  Bank  of  St.  Louis  v.  Rice,  103 

Ex  parte  Bradley 475 

Ex  parte  Burr 433,  473 

Ex  parte  Draycott 334 

Ex  parte  Faulkner 431,  433 

Ex  parte  Frost 475 

Ex  parte  Garland 430,  431,  433,  433 

434,  473 

Ex  parte  Gibberson 445 

Ex  parte  Gwy nne 477 

Ex  parte  Heyfron 430,  475 

Ex  parte  Hunter 433 

Ex  parte  Kendall 353 

Ex  parte  Law 431,  433 

Ex  parte  Maulsby 471 

Ex  parte  McClelan 456 

Ex  parte  McComb 333 

Ex  parte  Quarrier 433 

Ex  parte  Robbins 450 

Ex  parte  Robinson 475 

Ex  parte  Russell 454 

Ex  ijarte  Secomb 433 

Ex  parte  Staats 462 

Ex  parte  Smith 474 

Ex  parte  Snelling 433 

Ex  parte  Sutton 236 

Ex  parte  Tenney 433 

Ex  parte  Yale 431 

Exum  v.  Brister 234,  266,  288 

Ezell  V.  Franklin 227 

Fabens  v.  Mercantile  Bank 516,  517 

Fairbanks  v.  Bloomfield 424,  425 

Fairbanks  v.  Kerr 150 

Fairbanks  v.  Stanley 231 

Fairchild  v.  Bentley 308 

Fairchild  v.  Holly 177,  178 


PAGE. 

Fairchild  v.  Ogdensburgh,  etc.,  R.  R.,  543 
559,  565,  635 

Fairgrieves  v.  Lehigh  Co 363 

Falconer  v.  Smith 396 

Falea  v.  Russell 164,  166 

Falley  v.  Giles 124 

Fallich  V.  Barber 101 

Fallon  V.  Ellison 412 

Falls  V.  Reis 709 

Falls  Village,  etc.,  Co.  v.  Tibbetts  . . .  709 

Falmouth  v.  Penrose. 378 

Fancourt  v.  Thorne 553 

Fanning  v.  Dunham 156 

Farmerti'  Rank  of  Amsterdam  v.  Blair,     95 

Farmers'  Bank  v.  Beaston 425 

Farmers  and  Mechanics'  Bank  of  Kent 
Co.  v.  Butchers  and  Drovers'  Bank,  507 

634 
Farmers'  Trust,    etc.    Bank  v,  Ket- 

chum 440 

Farmers',  etc.,  Bank  v.  King 504 

Farmers  and  Citizens'  Bank  v.  Payne,  232 

398 

Farmers'  Bank  v.  Planters'  Bank 504 

Farmer  v.  Rand 630 

Farmers'  Bank  of  Virginia  v.  Reyn- 
olds    166 

Farmers    and    Mechanics'    National 

Bank,  etc.,  v.  Sprauge 129,  229 

Farmers'  Bank  v.  Sprigg 440 

Farmer  v.  Stewart 98 

Farmers  and  Mechanics'  Bank  v.  Troy 

City  Bank 337  *» 

Farmers'  Bank  of  Bridgport  v.  Vail,  630 

633,  637 
Farmers"  Loan  and  Trust  Co.  v.  Wal- 
worth   233 

Farnum  v.  Bartlett 684 

Farnum  v.  Blackstone  Canal  Corp. . .   736 

Farnam  v.  Brooks ' 196 

Farnum  v.  Concord 733 

Farnum  v.  Virgin 574 

Farnham  v.  Camden,  etc.,  R.  R.  Co.. .   536 

Farnham  v.  Campbell 667 

Farnsworth  v.  Garrard 377 

Earns  worth  v.  Hemmer 347 

Farnsworth  v  Jackson 359 

Farnsworth  v.  Sweet 366 

Farr  v.  Newman 348 

Farrard  v.  Bouchel 404 

Farrand  v.  Marshall.  ...    144 

Farrar  v.  Baber 387 

Farrell  v.  Campbell 257,  259 

Farrow  v.  Barlier 431 

Farrington  v.  Ballard 104 

Farrington  v.  Brown 634 

Farrington  v.  Frankfort  Bank. . .  566,  591 

611 

Farrington  v.  Meek 274 

Farrington  v.  Park  Bank 617 

Farrington  v.  Payne 146 

Farver  v.  State 334 

Farwell  v.  Howard 234 

Far w. til  V.  Matlier 113 

Farwejl  v.  Rockland 381 

Fassitt  v.  Middleton 436 


TABLE  OF  CASES. 


Ivii 


PAGE. 

Faswell  v.  Kennett 546 

•Fatman  v.  Leet 223,  228 

Faulkner  v.  Brown 281 

FauU  V.  Tinsman 366 

Favene  v.  Bennett 283,  642 

Favor  v.  Philbrick 404 

Faxon  v.  Baxter  ...    491 

Fay  V.  Cheney 422 

Fay  V.  Richardson 679 

Fay  V .  Richmond 224 

Fay  V .  Oatley 700 

Fay  V.  Parker 346 

Fay's  Administrators  v.  Richards...    112 

Fayerweather  v.  Willet 686 

Fear  v.  Dunlap 596 

Fearing  V.  Irwin     717 

Feazle  v.  Simpson 429 

Fechheimer  v.  Hays  . . . .  < 411 

Felker  v.  Emerson 214 

Fellows  V.  Hartford,  etc..  Steamboat 

Co 290 

Fellows  V.  Hermans ....     84 

Fellows  V.  Little 206 

Felton  V.  Dickinson 382,  389,  390 

Fenn  v .  Harrison 222 

Fenno  v.  English 463 

Fenner  v.  Sanborn 21 

Fenly  v.  Stewart 239 

Fenton  v.  Robinson 567 

Ferguson  v.  Carrington 408 

Ferguson  v.  Crawford 457 

Ferguson  v.  Ferguson 202 

Ferguson  v.  Hamilton 222 

Ferguson  v.  Miller 300 

Fernon  v.  Farmer 563 

Feruer  v.  Williams 626 

Ferris  v .  Bond 545 

Ferris  v.  Ferris 168,  413 

Ferris  v.  Kilmer 256 

Ferris  v .  Paris 245,  253 

Ferrier  v .  Wood 409 

Fertig  V.  Boucher 680 

Fero  V.  Buifalo  &State  Line  R.  R.  Co.,  145 

Fetter  v.  Beale 345 

Fetrow  v.  Merriwether 369 

Fidler  v.  McKinley 728 

Field  V.  Adams 63 

Field  V .  Adreon 420 

Field  V.  Craig 180 

Field  V.  Cutts 584 

Field  V.  Gibbs 448 

Field  V.  Holland 177 

Field  V.  Mayor,  etc.,  of  N.  Y 856,  370 

Field  V.  Schricher 118 

Field  V.  Schieffelin 328 

Field  V.  Stagg 679 

Field  V.  Van  Cott 583 

Filerv.  Bissel .   705 

Filson  V .  Himes 106 

Finch  V.  Finch 156 

Findley  v.  Findley 121 

Fink  V.  Albany,  etc..  Railroad  Co. . . .  344 

First  National  Bank  v    Bache 517 

First  National  Bank  v.  Colby    421 

First   National   Bank   of    Groton    v. 

Crittenden 633 

H 


PAGE. 

Fire  Insurance  Co.  v.  Doll 237 

First  National  Bank  v.  Haight 515 

First  National  Bank  of  Cincinnati  v. 

Kelly 276,  527 

First  National  Bank  of  Whitehall  v. 

Lamb 42 

First  National  Bank  of  Portland  v. 

Schuyler 593 

First  Baptist  Church    v.   Utica  and 

Schenectady  Railroad  Co 145 

Fish  V .  Brown 675 

Fish  V.  Ferris 306 

Fish  V .  Jacobsohn 279 

Fish  V.  Shut 319 

Fisher's  Appeal 247 

Fisher  v.  Clark 306 

Fisher  v .  Krutz 249 

Fisher  v .  Marvin 570 

Fisher  v.  Smith 717 

Fitch  V.  Casey 385 

Fitch  V.  Redding 506,  510 

Fitch  V.  Sargeant 383 

Fitch  V .  Scott 460 

Fitch  V.  Snedaker 101 

Fitch  V.  Waite 416 

Fitch  V.    Woodruff  and  Beach   Iron 

Works 131 

Fitchburg  Bank  v.  Greenwood 598 

Fitts  V.  Green 679 

Fitzgerald  v.  Cavin 336 

Fitzgerald  v.  Vestal 357 

Fitzgibbon  v.  Kenney 191 

Fitzhugh  v.  Runyon 609 

Fitzhugh  V .  Wilcox 83 

Fitzpatrick  v.  School  Commissioners,  233 

Fitzsimmons  v.  Joslin 288 

Fitzsimmons  v.  Southern  Express  Co.   248 

Flack  V.  Cunningham 701 

Flack  V .  Neill 469 

Fladong  v.  Winter 705 

Flagg  V.  Thurston 707 

Flanagan  v.  Philadelphia 730 

Flanders  v.  Sherman 444 

I^lanigan  v.  Crull 488 

Flarty  v.  Odium 361 

Fleet  v .  Hallenkemp 137 

Fleet  v .  Hegeman 299 

Flemm  v.  Whitmore 104 

Fleming  v.  McClure 635 

Fletcher  v.  Ashburner 157 

Fletcher  v.  Daingerfield 430,  -475 

Fletcher  v.  Grover 185 

Fletcher  v.  Jackson 680 

Fletcher  v.  Peck 141 

Fletcher  v.  Phelps 712 

Fletcher  v.  Piatt 358,  368 

Flight  V.  Cook 656 

Flight  V.  Thomas 293 

Flint  V.  Craig 157 

Florence  v.  Richardson 476 

Floyd  v.  Hamilton 427 

Floyd  V.  Priester 197 

Flo'vd  V.  State 338 

Flynn  v.  Allen 367 

Foard  v.  Womach 628 

Foden  v.  Sharp 626,  635 


Iviii 


TABLE  OF   CASES. 


PAGE. 

Fogerty  v .  Jordan 452 

Fogg  V .  Sawyer 573 

Fogg  V.  Virgin 238,  239 

Folan  V.  Folan 490 

Foley  V.  Hill 502 

Foley  V.  Smith 457 

Follett  V.  People 738 

Folly  V.  Vantuyl 679 

Folsom  V.  Mussey 255 

Foltz  V.  Peters 276 

Fomin  v.  Oswell 255 

Fonda  V .  Sage 662,  666,  669 

Foot  V.  Dillaye 664 

Foot  V.  Tewksbury 454 

Force  v.  Craig 675 

Force  v.  Haines 374,  388 

Ford  V.  Caldwell  408 

Ford  V  Garner 363 

Ford  V.  Harrington 452 

Ford  V.  Hurd 412 

Ford  V.  Jefferson 692 

Ford  V.  Jones 345 

Forde  v.  Skinner 333,  335 

Ford  V.  Stuart 363 

Ford  V.  Tynte 302 

Ford  V.  Williams 239,  265,  449 

Fordham  v.  Wallis 185 

Foreman  v.  Carter 420 

Forney  v.  Hallacher 199 

Forrestier  v.  Boardman 223,  232,  241 

243,  256 

Forster  v.  Fuller 238 

Forsyth  v.  Beveridge 454 

Forsyth  v.  Day 233,  284 

Fortman  v.   Rottier 429 

Fort  Plain  Bridge  Co.  v.  Smith 730 

Forwood  V.  Delioney 365 

Foshay  v.  Ferguson 671 

Foss  V.  Robertson 273 

Fossler  v.  Schriber 471 

Foster  v.  Dow 37,  143 

Foster  v.  Essex  Bank 499,  501,  515 

Foster  v.  Jones 412 

Foster  v.  Julien 620 

Foster  v.  Mackinnon    566 

Foster  v.  Rockwell 242 

Foster  v.  Sinkler 191 

Foster  v.  Smith 282 

Foster  v.  Spencer 187 

Foster  v.  Stewart 408 

Foster  v.  Sweeney 428 

Foster  v.  Williams 706 

Foster  v.  Wiley 435,  448 

Fosterman  v.  Parker 115 

Fournier  v.  Cyr 673,  676,  680 

Fowler  v.  Bott 172 

Fowler  v.  Brooks 92 

Fowle  V.  Lawrason 174,  175,  188 

Fowler  v.  Reed 199 

Fowler  v.  Trull 233 

Fowler  v.  Williams 385 

Fox  V.  Drake 261,  262 

Fox  V.  Dunckle 63 

Fox  V.  McGregor 277 

Fox  V.  Wright 484 

Foxcroft  Academy  v.  Favor 105 


PAGE. 

Fragano  v.  Long 527 

Fraley  v.  Bisphan 402 

Frammell  v.  Little 316 

Franceschi  v.  Marino 705 

Franks  v.  Hamilton 686 

Franklin  Bank  v.  Bartlett 678 

Franklin  Bank  v.  Byram 509 

Franklin  v.  Ezell 222 

Franklin  v.   Globe  Mutual  Life  Ins. 

Co 219 

Franklin  Fire  Ins.  Co.  v.  Hamill 704 

Franklin  v.  Vanderpool 510,  628 

Franklin  Glass  Co.  v.  White    388 

Frankenheimer  v.  Slocum 411 

Fray  v.  Blackburn 147 

Frazier  v.  Erie  Bank 285 

Frear  v.  Drinker 447 

Frederick  v.  Brulard 714 

Freeland  v.  Heron 194 

Frellson  v.  Stewart 411 

Freeman  v.  Boston 100 

Freeman  v.  Curran 626 

Freeman  v.  Fairlie 660,  661 

Freeman  v.  Howe 425 

Freeman  v.  Newton 860,  861 

Freeman  v.  Okey 351 

Freeman's  Bank  v.  Perkins 634 

Freeman  v.  Sed>;  wick •.   153 

Freeman  v.  Tranch 18 

Freemantle  v.  London  &  North  West- 
ern Railway  Co 145 

French  v.  Donaldson 738,  739 

French  v.  Price 218 

French  v.  Turner 594 

French  v.  Vining 304 

Frisbie  v.  Larned 569,  570 

Frixione  v.  Tagliaferro 272 

Frost  V.  Clarkson t95 

Frost  V.  Knight 724 

Frost  y.  Spaulding 715 

Frothingham  v.  Everton 255 

Fry  V.  Derstler 200 

Fry  V.  Slyfield 189 

Fry e  v.  Barker 191 

Frye  v.  Calhoun  County 459 

Fugitt  V.  Nixon 619 

Fulgham  v.  State 342 

Fuller  V.  Bryan 411,  416 

Fuller  V.  Diiren 406,  408 

Fuller  V.  Colby 342 

Fulton  Ins.  Co.  v.  Baldwin 739 

Fulton  V.  Hood 702 

Fulton  Bank  v.  Phoenix  Bank 512 

Fulwood  V.  Graham 713 

Funk  V.  Ely 191 

Furman  v.  Haskin 640 

Furman  v.  Parke 100 

Furman  y.  Walter 411 

Gage  y.  Allison 291 

Gage  y.  Billings 665 

Gage  V.  Gannett 694 

Gage  y.  Jaqueth 523 

Gager  v.  liabcock 458 

Gaines  v.  Allen 246 

Gaines  y.  Brigga 265 


TABLE  OF  CASES. 


lix 


PAGE. 

Gaither  v.  Blowers 347 

Gaillard  v.  Smart 439 

Galbraith  v.  Davis 424 

Gale  V.  Miller 541 

Gallagher's  Appeal 351 

Gallagher  v.  Nichols 577 

Gallagher  v.  State 338 

Gallagher  v.  White 583,  584 

Gallagher  v.  Williamson 469 

Gallatin  v.  Bradford 499 

Gallery  v.  Priudle 551,  G25 

Galloway  v.  Holmes 408 

Galpiu  V.  Hard 556 

Galpin  v.  Page 461 

Gait  V.  Cook ■  325 

Gait  V.  Galloway 290 

Gait  V.  Swain. .'. 105 

Galton  V.  Hancock 353 

Gallup  V.  Lederer 129 

Gallup  V.  Merrill 271 

Galusha  v.  Hitchcock 238 

Gambert  v.  Hart 445,  459 

Gamble  v.  Grimes 106 

Gamble  v.  Loop 662 

Gammaye  v,  Alexander 399 

Gammon  v.  Schmoll 625 

Gamwell  v.  Mosely 563 

Gardiner  Manuf.  Co.  v.  Heald 380 

Gardiner  v.  Maderia 203 

Gardner  v.  Cole 372 

Gardner  v.  Gardner 328,  330 

Gardner  v.  Heartt 141 

Gardner  v.  Howland 529 

Gardner  v.  Ogden 21 

Gardner  v.  Smith 361 

Gardner  v.  State 342 

Gardner  v.  Taylor 463 

Gardner  v.   Webber 93 

Garfield  v.  Kirk 451 

Garfield  v.  University  of  Vermont. . .  491 

Garland  v.  Harrington  ...  * 358 

Garland  v.  Richeson 364 

Garland  v.  Tucker 387 

Garlington  v.  Priest 698 

Garner  v.  White 412 

Garnett  v.  Kirliman 98 

Garnett  v.  Macon 329,  330 

Garnett  v.  Roper 687 

Garrand  v.  Haddan 228,  286 

Garrard  v.  Railroad  Co 328 

Garrigue  v.  Loescher 225 

Garnsay  v.  Gardner ; . . . .  363 

Gasconade  County  v.  Sanders 702 

Gasherrie  v.  Apple 418 

Gaskell  v.  King 700 

Gassett  v.  Godfrey 129 

Gaston  v.  Plum 357 

Gates  v.  Beecher 620 

Gates  V.  Davenport 389 

Gates  v.  Lounsbtiry 340 

Gath Wright  v.  Callaway  Co 733 

Gault  v.  Humes 162 

Gaulden  v.  Sheeker 574 

Gaulden  v.  State 448 

Gaw  v.  Wolcott 397 

Gazzum  v.  Ohio  Ins.  Co   387 


PAGE. 

Gear  v.  Barnum 709 

Geary  v.  Physic 112,  554 

Gedge  v.  Trail 660 

Gee  v.  Gee 182 

Geer  v.  Archer 109 

Geer  v.  Brown 385 

Geiger  v.  Bolles 225 

Gelpecke  v.  Dubuque ...  688 

George  v.  Clagett 281,  382,  284 

George  v.  Harris 105 

George  v.  Johnson 197 

George  v.  Surrey 555 

Geortuer  v.  Trustees  of  Cauajoharie,  592 

Gerbeir  v.  Grabel 393,  395 

Gerry  v.  Eppes 381 

Getchell  v.  Clark 454 

Gibbs  v.  Bryant 383 

Gibbs  V.  Frost 678 

Gibbs  V.  Halstead 683 

Gibbs  v.  Linabury 566 

Gibbs  V.  Loomis 455 

Gibbs  V.  Marsh 171 

Gibson  v.  Cooke 356 

Gibson  v.  Dickee 724 

Gibson  v.  Jayne 654,  655 

Gibson  v.  Jeyes 466 

Gibson  v.  Minet 541,  543 

Gibson  v.  Vaughn 713 

Gibson  v.  Winter 283 

Giddings  v.  Coleman 364 

Giddings  v.  Eastman 468 

Giddings  V.  Sears 271 

Giffard  v.  Hart 660 

GiflFert  v.  West 367 

Gilbank  v.  Stevenson 446 

Gilbert  v.  Anthony 670,  673 

Gilbert  v.  Danforth 580 

Gilbert  v.  Williams 460 

Gilbraith  v.  Llnenburger 230 

Gilchrist  v.  McGee 718 

Giles  V.  Ackles 97 

Giles  V.  Austin 168 

Giles  V.  Giles 110 

Giles  V.  Mauldin 574 

Gilliat  V.  Gilliat 484,  485 

Gillilan  v.  Myers 548 

Gilmore  v.  Wilbur 378 

Gilpins  V.  Consequa 107 

Gill  v.  Brown 263,  363 

Gill  V.  Hewett 486 

Gill  V.  Middleton 390 

Gillett  V.  Averill 638 

Gillett  V.  Campbell 363 

Gillett  V.  Ellis 184 

Gillett  V.  Fairchild 360 

Gillett  V.  Hill 576 

Gillett  V.  Mason 298,  300 

Gillespie  v.  Hannahan 630 

Gillespie  v.  Wilder  .   270 

Gillaspie  v.  Kelley 557 

Gilson  V.  Stewart 378 

Girard  Bank  v.  Bank  of  Penn  Town- 
ship   504,  507 

Girard  v.  Taggart 280,  488 

Girardy  v.  Stone 487 

Gist  V.  Lybrand 620 


IX 


TABLE  OF  CASES. 


PAGE. 

Givan  v.  Swadley 103 

Givens  v.  Briscoe 442 

Given  v.  Driggs 463,  683,  693 

(iladraau  v.  Johuson 315 

(xladwell  V.  Steggall 186 

( f  lasgo w  V.  Copeland 620 

(ilazier  v.  Bailey 663,  669 

Gleason  v.  Dodd 444 

Uleason  v.  Peck 492 

Gleuu  V.  Cuttle 461 

(xlentworth  v.  Lutlier 270 

Glidewell  v.  McC4augliey 691 

Globe  Works  v.  Wright 115,  116 

Glouinger  v.  Hazard 174,  175,  187 

Gloucester  Bank  v.  Salem  Bank 513 

Goble  V.  Howard   414 

Goddard  v.  Gardner 470 

Goddard  v.  Grand  Trunk  Railway. . .   265 

Goddard  v.  Merchants'  Bank 643 

Godin  V.  Bank  of  Commonwealth  507,  556 

Godfrey  v.  People 336 

Godley  v.  Hagerty '.   138 

Godsall  V.  Boldero 142 

Godwin  v.  Francis 89 

Goodwin  v.  Harrison 191 

Gofl-  V.  Kilts 300,  301 

Golding  V.  Merchant 228 

Goldsmid  v.  Hampton 555 

Goldsmid  v.  Lewis  County  Bank,  591,  612 

(jioldsmith  v .  Jones ....     62 

Goldsmith  v.  Picard 429 

(ioldwin  V.  Francis 258 

Goltra  V.  Wolcott 470 

Goodall  V.  Thurman 725 

Goodchild  v.  Terret 349 

Goodenough  v.  Spencer 444,  453 

Goodman  v.  Gay 314 

Goodman  v.  Symonds 614 

Goodman  v.  Walker 459,  467 

(Toodridge  v.  Dustin 720 

Goodrich  v.  Lafflin 383 

Goodrich  v.  Proctor 329 

Goodrich  v.  Eeynolds 397 

Goodrich  v.  Willard 491 

Goodrun  v.  Carroll 690 

Goosey  v.  Goosey 121,  123 

Goodtitle  v.  Alker 708 

Goodwin  v.  Blake 674 

Goodwin  v.  Bowden 289 

Goodwin  v.  Gilbert 380 

Goodwin  v.  Holbrook 119,  579,  581 

Gordon  v.  Barkelew 212 

Gordon  v.  Drury 366 

Gordon  v.  Frazier .   681 

Gordon  v.  Kennedy 394 

Gordon  v.  Phillips 380 

Gordon  v.  Price 568 

Gore  V.  Chadwick 346 

Gore  V.  Gibson 671 

Gorham  v.  Gale 221,  441,  443 

(iorum  V.  Carley 281 

Goslien  Turnpike  Co.  v.  Hurtin,  562,  563 

Gosling  V.  Birnie 523 

(«oga  V.  Lester 352,  353 

Goss  V.  Nelson 550 

Gould  V.  Gould 246 


PAGE. 

Gould  V.  Rich 232 

Gould  V.  Village  of  Phoenix 108 

Goulding  v.  Skinner 402 

Goulet  V.  Asseler 31 

Gove  V.  Richardson 719 

Gove  V.  White 709 

Gover  v.  Hall 198 

Governor  v.  Carter 511 

Gouverneur  v.  Elliot 398 

Governor,  Guardians,  etc.,  of  the  poor 
of  Kingstou-upon-Hull,  v.  Petch. . .     87 

Governor  v.  Matlock 696 

Governor  v.  Williams 671 

Gowan  v.  Jackson 634 

Gower  v.  Emery 272,  473 

Grace  v.  Adams 521,  522,  526 

Graham  v.  Bradbury 415 

Graham  v.  Duck  wall 282 

Graham  v.  Hackwith 167 

Graham  v.  Henry 858 

Graham  v.  Ledda 523 

Graham  v.  Newman 356 

Graham  v.  O'Pallon 473 

Graham  v.  United  States  Saving  Insti- 
tution   224,  231  284 

Grandin  v.  Le  Roy 612 

Granger  v.  Bassett 180 

Granger  v.  Swart 711 

Grant  v.  Button 377 

Grant  v.  Ellicott 610 

Grant  v.  Hook 328,  331 

Grant  v.  Ludlow 361 

Grant  v.  Quick 162 

Grant  v.  Taylor 501 

Grant  vWilley 726,728 

Grantham  v.  Canaan 704 

Gratoit  v.  United  States 269 

Grattan  v.  Grattan 205,  208,  209  211 

Graves  v.  American  Exchange  Bank,  590 

642,  643 

Graves  v.  Amoskeag  Co 708 

Graves  v.  Friend 569 

Graves  v.  Ticknor 101 

Graves  v.  Tucker 703 

Graw  V.  Hannah 587 

Grav  V.  Barton 701 

Gray  v.  Clark i 118, 122,  126 

Gray  v.  Fox 472 

Gray  v.  Garrison 358 

Gray  v.  Griffith 406 

Gray  v.  Gutteridge    481 

Gray  v.  Johnston 148 

Gray  v.  Milner 365 

Gray  v.  Thomas 364 

Gray  v.  Wass 444 

Gray  v.  Wood 556 

Grayson  v.  Wilkinson 459 

Greathouse  v.  Dunlap 683,  701 

Great     Northern     Railway    Co.     v. 

Witham 108 

Greely  v.  Bartlett  223 

Greenleaf  v.  McColley 401 

Greenleaf  v.  Moody 232,  243, 256 

Green  way,  Ex  parte 165 

Greenwich  Bank  v.  De  Groot 630 

Greenwood  v.  Burns 284 


TABLE  OF  CASES. 


Ixi 


PAGE. 

Greenwood  v.  Colcock 673 

Greenwood  v.  Curtis 395 

Greenwood  v.  Spring 248,  271 

Greenfield  Bank  v.  Crafts 233 

Greene  v.  Bateman 405 

Green  v.  Baverstock  .      483,  484 

Green  v.  Fry 384 

Green  v.  Goings 626,  635 

Greene  v.  Greene 420 

Green  v;  Hankinsou 654 

Green  v.  Howell 206 

Green  v.  Kopke 259 

Green  v.  Nortli  BuflFalo  Township,  677,  703 

Green  v .  Sicliel 530 

Green  v .  Skeel 259 

Green  v.  Spring    175 

Green  v.  Smitli 685,  703 

Greenup  v.  Stoker 728 

Greetham  v.  Colton 330 

Greiner  v.  Prendergast 413 

Gregg  V.  Nilson 424 

Gregory  v.  Bailey 189,  399 

Gregory  v.  Forrester 197 

Gregory  v.  Hill 338,  839 

Gregory  v.  Mack 376 

Gregory  v.  Savage 172 

Greville  v.  Atkins 699 

Grey  v.  Grey 205 

Greysou  v.  Theaker 204 

Gridley  v.  Gridley      19 

Gridley  v.  Lord  Palmerston 262 

Gridley's  Heira  v.  Phillips 170 

Gridley  v.  Watson 666 

Grieff  v.  Switzer 525 

Greirson  v.  Eyre 187 

Griffin  v.  Bixby 713 

Griffin  v.  Carter 154 

Griffin  v.  Coleman 336 

Griffin  v.  Goff     647 

Griffin  v.  Rice 509,  562 

Griffin  V.  Parson-s 334 

Griffith  V.  Burden 688 

Griffith  V.  Follett 737 

Griffith  V.  Ingledew 279 

Griffith  V.  McCullum 61,    62 

Griffith  V.  Reed 545 

Griffith  V.  Willing 173 

Griffiths  V.  Hardenburgli 683,  683 

Grigsby  v.  Chappell 734 

Grinn  v.  School  Directors 680 

Grinnell  v.  Cook 277 

Grinell  v.  Kirtland 709 

Griswold  v.  Barnum 587 

Griswold  v.  Plumb 395 

Griswold  v.  Rutland 491 

Griswold  v.  Sharpe 413 

Griswold  v.  Slocum 596,  597 

Groat  V.  Gile 129 

Groce  v.  Rittenberry 411 

Groot  V.  Story 356,  362 

Grosvenor  v.  Allen 155 

Grosvenor  v.  Danforth 439 

Grosvenor  v.  New  York  Central  Rail- 
road Co 287 

Grouusell  v.  Lamb 397 

Grove  v.  Brandenburg 150 


PAGE. 

Groves  v.  Ruby 358 

Grover  v.  Grover  . .  / 363 

Grover  v.  Sims 390 

Grubles  v.  Wiley 237 

Grumley  v.  Webb 246,  250 

Guengerich  v.  Smith 346 

Guild  V.  Leonard 380 

Guilhon  v.  Linds 414 

Gulick  V.  Grover 219,  220,  233 

Gunn  V.  Harrison 649 

Gunnis  v.  Erhart 477.  488 

Gunnison  v.  Bancroft 117 

Guopy  V.  Hardin 598 

Guordon  v.  North  American  Ins.  Co.  358 

Guptill  V .  Damon 115 

Gurney  v.  Behreud 528 

Gurney  v.  Wormersley 367 

Gurnsey  v.  Burns 279 

Gusker  v.  Eddy 574 

Guthrie  v.  Armstrong 218 

Guthrie  v.  Wickliife  . .' 378 

Guy  V.  Butler ....  365 

Guy  V.  Hermance 664,  669 

Guy  V.  McLean  671 

Guyon  v.  Lewis 404 

Gwinnell  v.  Herbert 599 

Gwynn  v.  Jones 357 

Gyre  v .  Culver 54 

Haas  V.  Damon 178,  252,  254 

Haag  V.  Sparks 151 

Habersham  v.   Savannah,  etc.,  Canal 

Co 738 

Hackness  v.  Farley 450 

Hackney  v.  Jones 222,  563 

Hackly  v.  Swigert 380 

Hackettstown  Bank  v.  Mitchell 421 

Hadden  v.  Spader 659 

Hagar  v.  Danforth 340 

Hager  v.  Shindler 473 

Haggart  v.  Morgan 50 

Haggerty  v.  Allaire  Works 97 

Haggarty  v.  Pitman 658 

Hagerstown  Bank  v.  Adams'  Express,  512 
Hagerstown    Bank   v.    London,   etc.. 

Society 520 

Hagler  v.  McCombs 206 

Hahn  v.  Doolittle S67 

Haigh  V.  Brooks 375 

Haight  V.  Moore 452,  466 

Haiglette  v.  Leake 418 

Hains  v.  Galbraith 457 

Hair  v.  La  Brouse 131 

Hakes  v.  Hotchkiss 97,  131 

Halbert  v.  Deering 356 

Hale  v.  Ard 191 

Hale  V.  Chandler 413 

Hale  V.  Clark 303 

Hale  V.  Hale 180 

Hale  V .  Huntley 435 

Hale  V.  Omaha  National  Bank 31 

Hale  V.  Rawallie 503 

Hale  V.  Wall 245,  253 

Hale  V.  Webb 181 

Haley  v.  Reid 423 

Hall  V.  Costello 130 


Ixii 


TABLE  OF  CASES. 


PAGE. 

Hall  V.  Fislier 663,  669 

Hall  V.  Fuller 643 

Hall  V.  Hall 163.  325 

Hall  V.  Harper 234 

Hull  V.  Jackson 275 

Hall  V.  Lauderdale..  ..   Ill,  261,  262,  263 

Hall  V.  Lund 294 

Hall  V.  Newconib 596 

.Hall  V.  Peck 253 

Hall  V.  Renfro 447 

Hall  V.  Sampson 424 

Hall  V.  Smith 394 

Hall  V.  Stevenson • 181 

Hall  V.  Storrs 243 

Hall  V.  Wilson 556,  567,  613 

Hall  V.  Wright 726 

Halleck  v.  Mixer 407 

Hallett  V.  Bousefield 1»4 

Hallett  V.  Wylie 172 

Hallenbeck  v.  Rowley 710 

Halliday  v.  McDougall 560 

Halloback  v.  Van  Buskirk 379 

Holloran  v.  Whitcomb 369 

Hallowell's  Case 431 

Halsey  v.  McCormick 716 

Halsey  v.  Wbitney 423 

Hambley  v.  Trott 405,  408 

Hamill  v.  Gillespie 424 

Hamilton  v.  Brown 370 

Hamilton  v.  Cook  County 273 

Hamilton  v.  Cummings 663,  669 

Hamilton  v.  Fon  Du  Lac 665 

Hamilton  v.  Lomax 102 

Hamilton  v.  Lycoming  Ins.  Co 86 

Hamilton  v.  Marks 370 

Hamilton  v.  Moore . 401 

Hamilton  v.  Russell 372 

Hamilton  v.  Spottiswoode 550 

Hamilton  College  v.  Stewart 105 

Hamilton  v.  Vought. 279 

Hamilton  v.  Wright 456 

Hamlin  y.  Hamlin 167 

Hammarskold  v.  Bull 263 

Hammock  v.  White 161 

Hammon  v.  Cottle 241 

Hammon  v.  Shepard 71 

Hammond  v.  Cottle 245 

Hammond  v.  McLaughlin 716 

Hammond  V.  Ridgley 714 

Hanauer  v.  Gray 106 

Hancock  v.  Gomez 253 

Handely  v.  Statelor 458 

Handy  v.  Dobbin 423 

Hankins  v.  Lawrence 737 

Hanly  v.  Campbell 683 

Hansard  v.  Robinson 164,  165,  605 

Hanson  v.  Hoitt 440 

Hanson  v.  Millett 301 

Harbeck  v.  Craft 612 

Harbridge  v.  Warwick 293 

Hardeman  v.  Burge 95 

Hardeman  v.  Ford 233 

Harden  v.  Webster 675 

Hardy  v.  Keeler ,   448 

Hardy  v.  Morton 542 

Hare  v.  Van  Deusen 41 


PAGE. 

Hargrave  v.  Conroy 176,  179 

Hargroves  v.  Cook 177,  670,  683 

Harker  v.  Anderson 505,  506 

Harlan  v.  Harlan 93 

Harland  v.  Lilienthal 451,  458 

Harley  v.  Thornton 573 

Harman  v.  Harman 670 

Harman  v.  Reeve 301 

Harmon  v.  Moore 425 

Harmon  v.  Watson 438 

Harmony  v.  Bingham 107 

Harnor  v.  Graves 131 

Harper  v.  Albany  Mutual  Ins  Co  ... .  137 

Harper  v.  Calhoun 500 

Harper  v.  Harvey 435 

Harper  v.  Keys 427 

Harper  v.  Montgomery 394 

Harper  v.  Perry 467 

Harper  v.  Tahomden .  446 

Harpending  v.  Shoemaker 406 

Harrell  v.  Elsworth 730 

Harrell  v.  Watson 673 

Harrington  v.  Bigelow 154 

Harrington  v.  Cannon 325 

Harrington  v.  Miles 299 

Harrington  v.  Snyder 306 

Harris  v.  Allen 213 

Harris's  Appeal 305,  306 

Harris  v.  Christian 378 

Harris  v.  Clark 506,  619 

Harris  v.  Dennie 425 

Harris  v.  Harris 403,  673,  701 

Harris  v.  Heard 537 

Harris  v.  Ferguson 184 

Harris  v.  Ligget 389 

Harris  v.  Story 74 

Harris  v.  Thompson 737 

Harrison  v.  Brock 400 

Harrison  v.  Cage 737 

Harrison  v.  Harrison 338 

Harrison  v.  Lockart 684 

Harrison  v.  Liie 385 

Harrison  v.  Parker 708 

Harrison  v.  Price 304 

Harrison  v.  Ruscoe 647 

Harrison  v.  Turbeville 706 

Harrison  v.  Vought 615 

Harrisburg  Bank  v.  Tyler 519 

Harrop  v.  Fisher 586 

Harrop  v.  Hirst 40 

Harrow  v.  Farrow 442 

Harrower  v.  Ritson 63 

Hart  V.  Benton 357 

Hart  V.  Bull 694 

Hart  V.  Farmers  and  Mechanics'  Bank,  332 

Hart  V.  Hill 711 

Hart  V.  Lauman 50 

Hart  V.  Spaulding 440 

Hart  V.  Tyler 403 

Hart  V.  Woods 486 

Ilarter  v.  Morris 445,  459 

Hartford  v.  Chipmaii 6o3,  666,  668 

Hartford  Bridge  Co.  v.  East  Hartford,  731 

Hartford  v.  J  ackson 434 

Hartford  and  New  Haven  R.  R.  Co.  v. 
Jackson 88 


TABLE  OF  CASES. 


Ixiii 


PAGE. 

Hartford  Bank  v.  Stedman 499 

Hartford  Ins.  Co.  v.  Wilcox  ....  229,  291 

Hartley  v.  Rice 724 

Hartness  v.  Thompson 158 

Hartshorn  v.  Day 703 

Harvey  v.  Brydges (50 

Harvey  v.  Dunlop 38,  337 

Harvey  v.  Gibbons lOG 

Harvey  v.  Johnston 723,  724 

Harvey  v,  Mitchell 123,   715 

Harvey  v.  Richards 130 

Harvey  v.  Steptoe 351 

Harvey  v.  Stevens 480 

Harvey  v.  Towers 611 

Harwood  v.  Tompkins 295 

Hasbrook  v.  Paddock 156 

Haskell  v.  Allen 720 

Haskell  v.  Hilton 856 

Haskell  v.  Mitchell 586 

Haskius  v.  Burr 179 

Haskins  v.  Edwards 238 

Haskins  v.  Lombard 677 

Haskins  v.  Wright 389 

Hastings  v.  Dollarhide 214 

Hastings  v.  Johnson 512 

Hastings  v.  Palmer 659 

Hastings  v.  Pepper 525 

Hatch  v.  Dwight 711 

Hatch  V.  Fogarty 445,  467 

Hatch  V.  Mann 100 

Hatch  V.  Straight 207,  210 

Hatch  V,  Taylor 227,  286 

Hatch  V.  Trayes 563 

Hatfield  v.  Reynolds 283 

Hathaway  v.  Evans 718 

Hathaway  v.  Rice 338 

Hathorn  v.  Stinson 712 

Hauck  V.  Hund 648 

Haughton  v.  Merony 698 

Hauser  v.  Shore 330 

Haussoullier  v.  Hartsink 553 

Haven  v.  Foster 85 

Havens  v.  Huntington 597,  642 

Havens  v.  Klein 297 

Havens  v.  Thompson 207 

Haverin  v.  Donuell 625,  626 

Haverstick  v.  Sipe 295,  296 

Hawes  v.  Smith 121 

Hawesville  v.  Lander 709 

Hawley  v.  Cramer 467 

Hawley  v.  Keeler 218,  233 

Hawley  v.  Mancius 352 

Hawley  v.  Morton 695 

Hawk  V.  Thorn 360 

Hawkes  v.  Phillips 596 

Hawkes  v.  Young 388 

Hawlvins  v.  Baker 234 

Hawkins  v.  Cardy 598 

Hawkins  v.  Walker 254 

Hawkins  v.  Watkius 546 

Hawtayne  v.  Bourne 231 

Haxtun  v.  Bishop 559,  626,  635,  640 

Hay  V.  Marshall 176 

Hay  V.  Morris 470 

Hayden  v.  Brooklyn  Savings  Bank. .  509 

510 


PAGE. 

Hayden  v.  Middlesex  Tump.  Corp. . .   392 

Hayden  v.  Sample ........  427 

Haydook  v.  Lynch 552 

Haynes  v.  Waite 177 

Haynes  v.  Crutchfield 483 

Haynes  v.   Nice 177 

Haynes  v.  Woods ...   386 

Haynes  v.  Young 714 

Hays  V.  Gwin 548. 

Hays  V.  Jackson 351 

Hays  V.  Lynn 224,  284 

Hays  V.  Phelps 601,  647 

Hays  V.  Stone 568 

Hayes  v.  Symonds 262 

Hays  V.  The  People 332,  333 

Hayes  v.  Ward 657 

Hayes  v.  Willis 358,  362 

Hayselden  v.  Staff 397 

Hayter  V.  Moat 394 

Haythorn  v.  Margerem 666 

Haywood  v.  Hutchins 176,  187 

Haywood  v.  Leonard 404 

Hazard  v.  Day 89 

Hazard  v.  Irwin 702 

Hazel  V.  Clarke 338,  342 

Hazelhurst  v.  Mayor,  etc.,  Baltimore,  152 

Hazeltou  v.  Batchelder 234 

Hazelrigg  v.  Brenton 449 

Hazul  V.  Dunham 484 

Heacock  v.  Sherman 731,  732 

Head  v.  Gervais 439 

Head  v.  James 666 

Headley  v.  Good 443 

Healy  v.  Gilman 401,  510 

Heard  v.  Brewer 527 

Heard  v.  Drake 169 

Heard  v.  March 218 

Heartt  v.  Corning 188 

"Heath  v.  Savings  Bank 510 

Heathman  v.  Hall 104 

Heaton  v.  Fiudhiy 473 

Heck  V.  Shener 377,  396 

Hedges  v.  Sealy 586 

HefiFerman  v.  Burt 438 

Heidenheimer  v.  Wilson 587 

Heineman  v.  Heard  ...    250 

Heister  v.  Davis 472 

Helper  v.  Alden 543 

Hellings  v.  Hamilton 513 

Helhnan  v.  McWhennie 457 

Helm  V.  Wilson 395 

Hemenway  v.  Hemenway 253 

Hemmeuway  v.  Hickes 393 

Hemenway  v.  Smith 470 

Heuning  v.  Van  Hook    377 

Henderlite  v.  Thurman 705 

Henderson  v.  Barn  wall 236 

Henderson  v.  Burton 350 

Henderson  v.  Cumniings 233 

Henderson  v.  Howard 395 

Henderson  v.  Marvin 584 

Henderson  v.  McDuffee 186 

Henderson  v.  Pope 506 

Henderson  v.  Railroad   Co 143 

Henderson  v.  Thornton 413 

Henderson  v.  Vaulx 661 


Ixiv 


TABLE  OF  CASES. 


PAGE. 

Hendrickson  v,  Hutcliinson 400 

Heukel  v.  Pape 88,  89 

Heukin  v.  Guerss 141 

Henuen  v.  Heuueu 419 

Henry  v.  Fowler 454 

Henry  v.  Hughes 363 

Henry  v.  Raman 468 

Heralson  v.  Mason 697 

Herndon  v.  Forney 437 

Herudon  v.   Taylor 379 

ilerrick  v.  Ames 198 

Herrick  v.  Bennett 558,  640 

Herrick  v   Catley 347,  448 

Herrick  v.  Orange  County  Bank  ....  493 

Herrick  v.  Whitney 600 

Herrick  v.  Woolverton 559,  640 

Herring  v.  Hoppock 387 

Herring  v.  Sawyer 571 

Herring  v.  Wihnington  &  Raleigh  R. 

R 145 

Herring  v.  Woodhull 594 

Herrington  v.  Williams  ^ 666 

Herriter  v.  Porter ' • 146 

Herron  v.  Bullitt. 464 

Hertell  v.  Van  Buren 188 

Hess  V.  Cole 458 

Hess  V.  Joseph 463 

Hester  v.  Keith 684 

Heston  v.  Williamson 586 

Hewett  V.  Bronson 390 

Hewett  V.  Painter 116 

Hewett  V.  Swift 387 

Hey  wood  v.  Perrin 133 

Hey  wood  v.  Wright. 540 

nibble  white  v.  McMorine 318 

Hickling  v.  Hardey 573 

Hickman  v.  McCurdy 183 

Hickman  v.  Stout 176 

Hicks  V.  Bradner 303 

Hicka  V.  Coleman 713 

Hicks  V.  Hinde 589,  598 

Hicks  V.  Minturn 480 

Hicka  V.  Murphy 493 

Hicks  V.  Whitmore 381 

Hicks  V.  Williams 736 

Higgs  V.  Smith 703 

Higgins  V.  Moore 139 

Higgins  V.  Senior 339 

Higgins  V.  Wasgatt 119 

Higgins  V.  Watson 165 

Higginbotham  v.  State 333 

Hight's  Appeal 305 

Hilborn  v.  Alford 555 

Hillsborough  v.  Londonderry 377 

Hildebrand  v.  Crawford 387 

Hillary  v.  Waller 704 

Killer  v.  Ivy 435 

Hillman  v.  Wilcox 378 

Hill  V.  Beebe 568 

Hill  V.  Buckminster 96 

Hill  V.  Davis 406 

Hill  V.  Lackey 164 

Hill  V.  Lewis 599 

Hill  V.  Lord 711 

Hill  V.  M.  &  S.  Water- works  Co 699 

Hill  V.  Norris 638 


PAGE. 

Hill  V.  Pine  River  Bank 380 

Hills  V.  Place 559 

Hill  V.  Bobbins 178 

Hill  V.  Rogers 339 

Hill  V.  Scales 677 

Hill  V.   South  Staffordshire   Railway 

Co 179 

Hill  V.  Supervisors  of  Livingston.  . . .   731 

Hill  V.  Wallace 378 

Hill  V.  Williams 369 

Hilt  V.  Campbell   395 

Hilton  V.  Burley 400 

Hilton  V,  Eckersley 699 

Hilton  V.  South  wick 103 

Hinckley  v.  Emerson 331 

Hinckley  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  533 

Hinkley  v.  Fowler 387 

Hinkley  v.    St.    Anthony   Falls,   etc., 

Co 444 

Hinds  V.  Barton. . .    161 

Hinds  V.  Bazealle 130 

Hinde  v.  Whitehouse 485 

Hinman  v.  Moulton 93 

Hinneman  v.  Rosenback ■. . . .  548 

Hinsaman  v.  Hinsaman 677 

Hinsdale  v.  Bank  of  Orange,  398,  513,  607 

Hinshaw  v.  Dutton 565 

Hinton  v.  Whitehurst 705 

Hirshfield  v.  Landman 331 

Hirst  V.  Brooks 559 

Hirst  V.  Tolson 181 

Hitchcock  V.  Lukens 390 

Hitchcock  V.  McGehee 463 

Hitclien  v.  Birks 660 

Hite  V.  Blandford 307 

Hoadley  v.  Watson 346 

Hoagland  v.  Moore 383 

Hoare  v.  Graham 609 

Hoboken  Land  Co.  v.  Kerrigan. .  709,  717 

Hockeubury  v.  Carlisle 468 

Hoddy  V.  Hoard 164 

Hodge  V.  Boothby 710 

Hodge  v.  National  Bank 519 

Hodges  V.  Griggs 663 

Hodges  V.  Harris 365 

Hodges  V.  Pingree 186 

Hodges  V.  Runyan 363 

Hodges  V.  Shuler 544,  644 

Hodges  V.  Windham , . .  300 

Hodnett  v.  Smith 113 

Hodgson  V.  Dexter 363 

Hodgson  V.  Macy 310 

Hoffman  v.  .35tna  Insurance  Co 134 

HoflTman  v.  Armstrong. .    713 

Hotfman  v.  Carow 375,   480 

HoflTman  v.  Smith 470 

Hoffmam  v.   Treadwell 340 

HoflPman   v.  Vallejo 453 

Hoffman  v.  Van  Nostrand 463 

Hogan  V.  McMurtrv 711 

Hogan  V.  Shorb  . . .' 381 

Hogg  V.  Martin 459 

Hogg  V.  Snaith 230 

Hoggett  V.  Emerson 417 

Hoggins  V.   Plympton 110 

Hoitt  V.  Holcomb 70B 


TABLE  OF  CASES. 


Ixy 


PAGE. 

Hoke  V.  Hoke 680 

Holbert  v.  Montgomery 441 

Holbrook  v.  Wight 275,  276 

Holbrook  v.  Vose 522,  527,  528 

Holcroft  V.  Dickinson 723 

Holcomb  V.  Foxwortli 427 

Holdridge  v.  Allin 673 

Holdsworth  v.  Hunter 560 

Holker  v.  Parker 436 

Holland  v.  Mayor,  etc.,  of  Baltimore,  665 

Hollenbeck  v.  Fleming 113 

Holley  V.  Borland 399 

Holly  V.  Huggeford 277,  424 

Holl'iday  v.  Atkinson 563,  608 

Hollis  V.  Pond 675 

Hollister  v.  Attmore 209 

Holloway  v.  Chiles 421 

Holloway  v.  Griffith. .: 724 

Holman  v.  Kimball 470 

Holmes  v.  Bellingham 709 

Holmes  v.  Boughton 85 

Holmes  v.  D'Camp 192,  195,  570 

Holmes  v.  Hall 124 

Holmes  v.  Mather 38,  161,  309 

Holmes  v.  Morse 195 

Holmes  v.  Smith 387 

Holmes  v.  Taber 180 

Holmes  v.  Weed 110 

Holmes  v.  West 558 

Holt  V.  Ward 727 

Holtsinger  v.  National  Corn  Exchajige 

.    Bank 226 

Holtz  V.  Bnppe , 620 

Holtz  V.  Schmidt 71 

Homan  v.  Earle 722,  723 

Homburger  v.  Homburger 202 

Home  Insurance  Co.  v.  Green 645 

Homestead  Co.  v.  Valley  R.  R 387 

Honeyman  v.  Campbell 722,  723 

Honey  man  v.  Marryatt 83 

Honsee  v.  Hammond 40 

Hood  V.  Hallenbeck 589 

Hood  V.  Miller 512 

Hook  V.  Hook 206,  208 

Hooker  v.  Eagle  Bank 364,   308 

Hooper  v.  Rathbone 525 

Hoopes  V.  Burnett 466 

Hoover  v.  Hoover 327 

Hope  V.  Coleman 326 

Hopkins  v.  Adams 166 

Hopkins  v.  Deaves 697 

Hopkins  v.  Hayward 490 

Hopkins  v.  Mehaffy 258 

Hopkins  v.  Mollineux 214 

Hopkins  v.  Logan 110,  375 

Hopkins  V.  Willard 441 

HopkiA  V.  Payn 631 

Hopper  V.  Eiland 403 

Hopper  V.  Reeve 336 

Hoppiss  V.  Eskridge.    363 

Hopping  V.  Quin 460 

Horn  V.  Horn  329 

Horner  v.  Wood 358 

Horton  v.  Arnold 574 

Horton  v.  Cook 323,  324 

Horton  v.  Garrison 598 

I 


PAGE. 

Horton  v.  McCarty 486,  487 

Hosstatter  v.  Wilson 544,  575 

Hotchkins  v.  Hodge 722,  725 

Hotchkiss  V.  Elting 668 

Hotchkiss  V.  Le  Roy 456 

Hotchkiss  V.  Mosher 511 

Hough  V.  Barton 166 

Hough  V.  Brown 87 

Hough  V .  Horsey 158 

Hough  V.  Hunt 95 

Hough  V.  Kugler 414 

Hough  V.  Young 403 

Houghtailing  v.  Ball 130 

Houghtaling  v.  Marvin 290 

Houghtaling  v.  Randen 102 

Houghton  V.  Dodge 588 

Houghton  V.  Ely 597,  599 

Houghton  V.  Mathews 281 

Houliston  V.  Smyth 704 

House  V.  Adams 619,  632 

House  V.  Hamilton 416 

House  V.  Raymond 352 

Houx  V.  Russell 461 

Hover  v.  Heath 461 

Hovev  V.  Blanchard 231,  232 

Hovey  v.  The  Rubber  Tip  Pencil  Co.,  693 

How  v.  Codman 450 

How  v.  Synge 700 

Howe  V.  BuflFalo,  New  York  and  Erie 

Railroad  Co 272 

Howe  V.  Howe 695 

Howe  v.  Lawrence 440,  442 

Howe  V.  Mason 147 

Howe  V.  Ward 186 

Howe  V.  Young 142 

Howes  V.  Austin 398 

Howard  v.  Baillie 221 

Howard  Fire   Insurance  Co.   v.  Bru- 

ner 137 

Howard  v .  Duncan 233 

Howard  v.  Farley 697 

Howard  v.  Grover 241 

Howard  v .  Harris 43 

Howard  v.  Ives 630,  633,  637,  646 

Howard  v.  Jones 568 

Howard  v  McCall 177 

Howard  v.  Osceola 454 

Howard  v.  Papera G60 

Howard  v.  Robbins 61,     62 

Howard  v.  Shepherd 135,  530 

Howard  v.  Smith 457 

Howard  v.  Taylor 463 

Howard  v.  Tucker 272 

Howard  v.  Wood 405 

Howell  v.  Bulkley 363 

Howell  V.  Fountain : . .  .  674 

Howell  V.  Gordon 215,  231 

Howell  V.  Jackson 343 

Howland  v.  Lownds 101 

Howland  v.  Taylor 454 

Hoxie  V.  Weston 608 

Hoy  V.  Smith 357 

Hoyt  V.  Bvrnes 512 

Hovt  v.  Seeley 506 

Hovt  V.  Wilkinson 193 

Hubbard  v.  Blow 401 


Ixvi 


TABLE  OF  CASES. 


PAGE. 

Hubbard  v.  Chenango  Bank 514 

Hubbard  v.  Coblidge 94 

Hubbard  v.  Elmer 240 

Hubbard  v.  Martin 85 

Hubbard  v.  Mattliewa 215,  601 

Hubbard  v.  Mosely 548 

Hubbard  v.  Town 294,  296 

Hubble  V.  Fogartie 563 

Hubbell  V.  Coudrey 387 

Hubbell  V.  Lord 626 

Hubbtdl  V.  Medbury 180 

Hubbell  V.  Sibley 9 

Hucliesou  V.  Ross 412 

Hudson  V.  Granger 281 

Hudson  V.  Hudson 212 

Hudson  V.  Roberts 313 

Hudson  V.  Williams 702 

Hudspeth  v.  Thomaston 164 

HuflF  V.  Hatch : 241 

Hughes'  Appeal 212 

Hughes  V.  I  rooks 428,  429 

Hughes  V.  Hampton 190 

Hughes  V.  Kelly 424 

Hughes  V.  Mulvey 431 

Hughes  V.  Providence,  etc.,  R.  R.,  709,  717 

Hughes  V.  Sanders 681 

Hughes  V.  Wheeler 563,  568,  570 

Huguenin  v.  Basely 600 

Hull  V.  County  of  Marshall 261 

Hulse  V.  Hulse 375 

Hulse  V.  Young 479,  488 

Humble  v.  Hunter 281 

Humphrey  v.  Browning 454 

Humphrey  v.  Cumming 456 

Humphrey  v.  Douglass 322 

Humphreys  v.  Havens 233 

Humiston  v .  Ballard 45 

Humiston  v.  Smith 407 

Hunley  v.  Lang 398 

Hunnewell  v.  Charlestown 665 

Hunsager  v.  Sturgis. 249 

Hunt  V.  Amidon 110 

Hunt  V .  Brennan 439 

Hunt  V.  Chapin 227 

Hunt  V .  Ellison 153 

Huntv.  Fish 631 

Hunt  V .  Francis 709 

Hunt  V.  Frost 484 

Hunt  V.  Norris 413 

Hunt  V.  Peake  102,  727 

Hunt  V.  Philadelphia 476 

Hunt  V.  Printup 449 

Hunt    V.    liousmanier's   Administra- 
tors  239,  289,  290 

Hunt  V .  Standart 130 

Hunt  V .  Stevens 425 

Hunt  V.  Thompson 378 

Hunt  V.  Turner 154 

Hunt  V.  Wadleigh 635 

Hunter  v.  Anthony 121 

Hunter  v.  Hook 635 

Hunter  v.    Hudson   River  Iron  and 

Machine  Co 287 

Hunter  v.  Jameson. . .    227 

Hunter  v.  Miller 118,  237 

Hunter  v.  Watson 470 


PAGE. 

Huntington  v.  Allen 662,  666,  668 

Huutington  v.  Dinsmore 118,  533 

Huntington  v.  Knox 281,  284 

Hurd  V.  Miller 21 

Hurd  V.  Pendrigh 94 

Hurdy  v.  Waters 214 

Hurley  v.  Brown 118 

Hurt  V.  Wilson 365 

Husbands  v.  Vincent 696 

Huston  V.  Ditto 493 

Huston  V.  Mitchell 436 

Huston  V.  Willams 703 

Hutchins  v.  Brackett 267 

Hutchins  v.  Hope 197 

Hutchinson  v.  Market  Bank  of  Troy,  193 

195 

Hutchinson  v.  Massareene 659 

Hutchinson  v.  Olcutt 276 

Hutcheson  v.  Blakeman 83,    86 

Hutchings  v.  Munger 224 

Hutton  v.  Mansell 723 

Hutton  v.  Robinson 470 

Hutton  V.  Warren 128 

Hugett  V.  Philadelphia  and  Reading 

Railroad   Co 145 

Hyams  v .  Michel 441 

Hyde  v.  Goodnow 567 

Hyde  v.  Tracy 183 

Hynds  v.  Hays 106,  107 

Hynes  v.  Jurgren 343,  287 

Idol  V.  Jones  800 

Illinois    Central  R.  R.  Co.  v.  Allen,    36 

146 

Illinois,  etc.,  v.  Cassell 115 

Illinois,  etc.,  R.  R.  Co.  v.  Sutton 344 

Illidge  v.  Goodwin 309 

Illsley  v.  Jewett 185 

Ilsley  V.  Merriam 283 

Incledon  v.  Northcote 353 

India  Rubber  Co.  v.  Hoit 387 

Indiana,  etc..  Bank  v.  Colgate..  527,  529 
Indianapolis,  etc.,  R.  R.  Co.  v.  Truitt,  304 

Ingalls  V.  Morgan 231 

Ingham  v.  Primrose 614 

Ingram  v.  Richardson 430 

Ingraham  v.  Disborough 366 

Ingraham  v.  Edwards 676 

Ingraham  v.  Leland 447 

Ingraham  v.  Gilbert 108,  387 

IngersoU  v.  Howard 431,  432 

Ingersoll  v.  Sergeant 181 

Inhabitants  of  Deerfield  v.  Arms....  713 

Inkster  v.  First  National  Bank 545 

In  Matter  of  Brown 506 

Innes  v.  Dunlop 368 

Innes  v.  Wylie 334 

In  re  Brown 507 

In  re  General  Estates  Co.,  etc 688 

In  re  Imperial  Land  Co.,  of  'Marseil- 
les, etc 688 

In  re  Johnson 658,  660 

In  re  Paschal 451,  463 

Insane  Hospital  v.  Higgina 387 

International  Bank  v.  Monteath 407 

Irving  v.  Greenwood 726 


TABLE  OF  CASES. 


Ixvii 


Irving  Bank  v.  Wetherald 509 

Irvine  v.  Spring 465 

Irwin  V.  Planters'  Bank 163,  512 

Isaacs  v.  Hermann 405 

Isaacs  V.  Tliird  Avenue  R.  R.  Co.,  264,  266 

Isham  V.  Downer 422 

Isou  V.  Ison  207 

Ives  V.  Curtis 416 

Ives  V.  Hulet , 263 

Ivory  V.  State  Bank  of  Missouri 506 

Ivy  V.  Barnhartt 428 

Jacks  V.  Darrin 507,  604 

Jack  V.  Davis 364 

Jackson  v.  Bartlett 444 

Jackson  v.  Blodgett 124 

Jackson  V.  Burke 178,  417 

Jackson  v.  Clark 123 

Jackson  v.  Defendorf 703 

Jackson  d  Stansbury  v.  Farmer  ....     60 

Jackson  v.  Frost 714 

Jackson  v.  Hathaway 708,  709 

Jackson  v.  Heath' 279 

Jackson  v.  Hotchkiss 704 

Jackson  v.  Jackson 208,  211 

Jackson  v.  Lou w 716 

Jackson  v.  Mutsdorf 208,  209 

Jackson  v.  Moore 208 

Jackson  v.  Perry 419 

Jackson  v.  Richards 646 

Jackson  v.  Second  Avenue  R.  R.  Co.,  287 

344 

Jackson  v.  Smithson 315 

Jackson  v.  State 474 

Jackson  v.  Waldron 18 

Jackson  v.  Wals worth 421 

Jacob's  Case 481 

Jacobs  V.  Morange 85 

Jacobs  V.  Warfield 289 

James  v.  Campell 333,  335 

James  v.  Chalmers 567,  568,  593,  598 

637,  642 
James  v.  Fulcrod 102 


James  v.  Hager. 
James  v.  Scott. . 


548 

655 

Jamison  v.  Petit 721 

Janes  v.  Buzzard 378 

Janes  v.  Jenkins 296 

Janvrin  v.  Exeter 100 

Jarratt  v.  Martin 700 

Jarvis  v.  Rogers 274 

Jarvis  v.  Sutton 96 

Jeanes  v.  Fridenberg 471 

Jeffries  v.  Hager 575 

Jeffrey  v.  Bigelow 287,  318 

Jeff"rey  v.  Walton 554 

Jeffers  v.  Johnson 691 

Jefferson  v. .Adams 346 

Jefferson  County  v.  Swain 419 

Jefts  v.  York 258 

Jencks  v.  Coleman 344 

Jenks  V.  Morgan 707 

Jenkins  v.  Gillespie 437 

Jenkins  v.  Hogg 483,  486 

Jenkins  v.  Stetson 683,  686 

Jenkins  v.  Thompson 384 


PAGE. 

Jenkins  v.  Van  Schaack 326 

Jenkins  v.  Waldron 148 

Jenkinson  v.  State 46d 

Jenkyns  v.  Usborne 584,  527 

Jenners  v.  Howard 703 

Jenness  v.  Mount  Hope  Iron  Co 83 

Jennings  v.  McConnell 466 

Jennings  v.  Roberts. 647 

Jennings  v.  Whittemore 152 

Jennison  v.  Stafford 90,    97 

Jervis  v.  Hoyt 234,  242 

Jerome  v.  Whitney  . . .   540,  546,  563,  574 
Jessel  V.  Williamsburgh  Ins.  Co. .  98,  368 

371 

Jeter  v.  Haviland 435 

Jett  V.  Hempstead 254 

Jewitt  V.  Somersett 386 

Jilson  V.  Gilbert _ 269 

Joest  V.  Williams 673 

Johnson  v.  Anderson 709 

Johnson  v.  Appleby 83 

Johnson  v.  Belden 205,  207,  310 

Johnson  v.  Boone 178 

Johnson  v.  Buck 486,  487,  488 

Johnson  v.  Catlin 279 

Johnson  v.  Chambers 120 

Johnson  v.  Clark 389,  393,  623 

Johnson  v.  County 688 

Johnson  v.  Cunningham 216,  463 

Johnson  v.  Daverne 473 

Johnson  v.  Farmers'  Bank .  .  254,  427,  504 

Johnson  v.  First  Nat.  Bank 603 

Johnson  v.  Gibson 108 

Johnson  v.  Gilbert 569,  599 

Johnson  v.  Harvey 490 

Johnson  v.  Hoyle 209 

Johnson  v.  Hubbell 155 

Jolinsou  V.  Jenkins 737 

Johnson  v.  Johnson 168,  665 

Johnson  V.  Jones 227 

Johnson  v.  Lansley 255 

Johnson  v.  Laughlin 418 

Johnson  v.  Lowry 420 

Johnson  v.  McGruder 323 

Johnson  v.  Oppenheim 295 

Johnson  v.  Patterson 304 

Johnson  v.  Plimpton 489,  493 

Johnson  v.  Reed 378 

Johnson'v.  Sellers 124 

Johnson  v.  Shields 357 

Johnson  v.  Smith 726 

Johnson  v.  Stark 398 

Johnson  v.  State 335 

Johnson  v.  Sullivan.    468 

Johnson  v.  Titus 94,  616 

Johnson  v.  Tompkins 333 

Johnson  V.  Weatherwas 677 

Johnson  v.  Weed 569^ 

Jolinson  v. Wingate 334 

Johnston  v.  Usborne 480 

Johnston  v.  Wabash  College 105 

Jones  V.  Adler 370 

Jones  V.  Alley 358 

Jones  V.  Baird 408 

Jones  V.  Blanton 186 

Jones  V.  Booth 219 


Ixviii 


TABLE  OF  CASES. 


PAGE. 

Jones  V.  Bradner 424 

Jones  V.  Butler 158 

Jones  V.  Childs 693,  696 

Jones  V.  Cooke 399 

Jones  V.  Cooper 693 

Jones  V.  Drake 364 

Jones  V.  Dunn 195 

Jones  V.  Farley 284 

Jones  V  Fort 637 

Jones  V.  Gregg 406 

Joaes  V.  Harraden 379 

Jones  V.  Hoar 406 

Jones  V.  Hodgskins 290 

Jones  v.  Holland 413 

Jones  V.  Hoyt 271 

Jones  V.  Jones 386,  528 

Jones  V.  Keith 730,  734 

Jones  V.  Longwood 675 

Jones  V.  Nanney 397,  479,  485 

Jones  V.  Pettibone 716 

Jones  V.  Phoenix  Bank 100 

Jones  V.  Pryor 400 

Jones  V.  Ryde 572 

Jones  V.  Savage 571,  635,  637 

Jones  V.  Smith 720 

Jones  V.  Thompson 204 

Jones  V.  Underwood 113 

Jones  V.  Watkins 85 

Jones  V.  Whitter 363,  370 

Jones  V.  Williams 61 

Jones  V.  Woodhull  162 

Jordon  v.  Black 366 

Jordon  v.  Cooper 403 

Jordan  v.  Deaton 718 

Jordon  v.  Faircloth 152 

Jordon  v.  Gillen 360,  452 

Jordon  v.  James 528 

Jordon  v.  Meredith 129 

Jose  V.  Baker 568 

Josliu  V.  Cowee 247,  448 

Josselyn  v.  McAllister 265 

Judah  V.  Harris  546 

Judah  V.  Trustees 452 

Judge  V.  Wilkins 95 

Judd  V.  Downing 490 

Judd  V.  Smith 506 

Judson  V.  Gray 450 

Judson  V.  Love 444 

Judsou  V.  Sturges 232 

Julian  V.  Shobroke  ...    .  576,  625 

Jury  V.  Barker 553 

Justh    V.    Nat.    Bank    of    Common- 
wealth   510 

Kain  v.  Old 131 

Kane  v.  Bloodgood 153 

Kane  v.  Haywood 474 

Kane  v.  Hood 116 

Kane  v.  Van  Vranken 450 

Kanaga  v.  Taylor 130 

Karr  v.  Porter 81 

KarmuUer  v.  Krotz  . • 118 

Kase  V.  John 376 

KasHon  v.  Smith 611 

Kavanagh  v.   Saunders 683 

Kay  V.  Scates 668 


PAGE. 

Kean  v.  Davis 239 

Keane  v.  Branden 195 

Keane  v.  Roberts 328 

Kearney  v.  Vaughan 170 

Keats  v.  Hugo 295,  297 

Keefe  v.  Vogel .• 96 

Keenan  v.  Cavanaugh 714 

Keen  v.  Jordon 162 

Keene  v.  Collier 501,  509 

Keeney  v.  Childs 689 

Kenney  v.  Grand  Trunk  Railway  Co.,  264 

Keightlinger  v.  Egan 309,  312 

Keif  v.  Ambrose 324 

Kellogg  V.  Gilbert 442 

Kellogg  V.  Griswold 409 

Kellogg  V.  Kellogg 471 

Kellogg  V.  Krauser 370 

Kellogg  V.  Miller 412 

Kellogg  V.  Norris 464 

Kelley  v.  Mayor,  etc.,  of  Brooklyn . . .   554 

564,  565 
Kelly  V.  Emigrant,  etc..  Savings  Bank,  510 

Kelly  V.  Foster 389 

Kelly  V.  Mills 122 

Kelly  V.  Partington 1 49 

Kelly  V.  Riley 725,  728 

Kelly  V.  Second  Nat.  Bank 624 

Kelly  V.  Tilton 309,  312 

Kellum  V.  Smith 718 

Keliher  v.  Conn.  River  R.  R 305 

Keluer  v.  Baxter 259 

Kelsey  v.  Deyo 378 

Kelsey  v.  Glover 733 

Kelsey  v.  Hobby 197 

Kelsey  v.  National  Bank  of  Crawford,  233 

Kelsey  v.  Rosborough 568 

Kelty  v.  Owens 387 

Kemp  V.  Burt 459 

Kemp  V.  McPherson 371 

Kemp  V.  Pryor 706 

Kempker  v.  Roblyer 240,  251 

Kendall  v.  Gal vin 563 

Kendall  v.  Hodgins 493 

Kendall  v.  New  Eng.  Co 352 

Kender  v.  Jones • 651 

Kennebec  Purchase  v.  TiflFany 708 

Kennedy  v.  Brown 196 

Kennedy  v.  Kennedy 651 

Kennon  v.  McRea 635 

Kenny  v.  First  Nat.  Bank  of  Albany,  573 

Kent  V.  Bornstein 280 

Kephart  v.  Butcher 569 

Kerby  v.  Jacobs 153 

Kerfoot  v.  Hyman 246 

Kerm  v.  Piper 231 

Kerncy  v.  Kerney 706 

Kerr  v.  Cotton 245 

Kerr  v.  Hoffman 414 

Kerr  v.  Seaver 320 

Kerslake  v.  Schoonmaker 228 

Keshan  v.  Gates 308 

Kesler  v.  Zimmerchitte   154 

Ketchell  v.  Burns 583 

Ketchum  v.  Verdell 219,  234 

Key,  etc.,  v.  Munsell 609 

Key  V.  Parnham 238 


TABLE  OF  CASES. 


Ixix 


PAGE. 

Keys  V.  Johnson 270 

Keyes  v.  Devlin 383 

Keyser  v.  Harbeck 523,  528 

Kibby  v.  Rucker 199 

Kidder  v.  Flagg 399 

Kidney  v.  Coussmaker 351 

Kilgore  v.  Bulkley 511 

Killietfer  v.  Herr 400 

Kiml)all  v.  Brawner 118 

Kimball  v.  Browner. . . .    128 

Kimball  v.  Cunningham ". .  378,  384 

Kimball  v.  Huntington  . ...  364,  543 

Kipaball  v.  Sumner 381 

Kimberly  v.  Fox 669 

Kincaid  v.  Dormey 718 

Kinder  v.  Gillespie 303 

King  V.  Accumulative  Assurance  Co.,    41 

King  V.  Andrews 177 

King  V.  Baldwin 163,  657 

King  V.  Barrett .'. 471 

King  V.  Butler 262,  263 

King  V.  Fowler 371 

King  V.  Gillett 726 

King  V.  Inhabitants  of  Bucks 729 

King  V.  Kerrison 738 

King  V.  Kersey 725 

King  V.  Kline 321 

King  V.  McDaniel 378 

King  V.  Paddock 377 

King  V.  Poole 45 

King  V.  Pope 463 

King  V.  Ruckman 113 

King  V.  Sears 375 

King  V.  Sheriff  of  Surrey 446 

King  V.  Shore 448 

King  V.  Thorn ' 588 

King  V.  Upton 97 

Kingsland  v.  Braisted 19 

Kingsland  v.  Chittenden. . .   707,  711,  717 

Kingsland  v.  Worsham 416 

Kinnard  v.  Kiunard 661 

Kinsman  v.  Birdsall 563 

Kinsey  v.  Wallace 93 

Kip  V.  Brigham 698 

Kip  V.  Monroe Ill 

Kircudbright  v.  Kircudbright 211 

Kirchner  v.  Venus 273 

Kirby  v.  Sisson 166,  602,  639 

Kirby  v.  State 202 

Kirk  v.  Hartman 268 

Kirk  V.  Morrow 154 

Kirkham  v.  Coe 428 

Kirkpatrick  v.  McCullough 546 

Kirkpatrick  v.  Stainer 259 

Kirkpatrick  v.  Turnbull 193 

Kirkman  v.  Vaulier 176 

Kirksey  v.  Jones 428 

Kirland  v.  State 333,  335,  336 

Kirton  v.  Wood  193 

Kisliug  V.  Shaw 466 

Kittredge  v.  Elliott 312,  314 

Kitchen  v.  Place 557 

Kitchen  v.  Tyson 191 

Klein  v.  Thompson 345 

Kline  v.  Central,  etc.,  R.  B.  Co 344 

Klingman  v.  Holmes 346 


PAGE. 

Klockenbaum  v.  Pierson 634 

Knapp  V.  Meigs. 413 

Knapp  V.  Smith 214,  215 

Knight  V.  Abert 305,  317 

Knight  V.  Bradswell 696 

Knight  V.  Cooley 87 

Knight  V.  Odell 447 

Knight  V.  Plimouth 245 

Knight  V.  Plymouth 659 

Knights  V.  Quarles 408 

Kinsley  v.  Shenberger 083 

Knott  V.  Yenable 619 

Kuour  V.  Wagoner 322 

Knowles  v.  Inches 650 

Knowles  v.  Micliel 193 

Knowlton  v.  Inhabitants,  etc 223 

Knowlton  v.  Plantation 457 

Knowlton  v.  Smith 719 

Knowlton  v.  Supervisors,  etc 669 

Knox  V.  Martin 398 

Knox  V.  Tlie  Ninetta 523 

Kock  V.  Bonitz . .   193,  193,  195,  196,  197 

Kollock  V.  Jackson 275,  276 

Koney  v.  Ward 312,  313 

Konitsky  v.  Mayor 109 

Kortwright    v.    BuflEalo   Commercial 

Bank 379 

Kottwitz  V.  Alexander ^ 106 

Kountz  V.  Price 219 

Kramer  v.  Sanford 627 

Krause  v.  Dorrauce 461 

Krebs  v.  Krebs 213 

Kreheler  v.  Thaule 463 

Krevet  v.  Meyer 60 

Kridner  v.  Western  College 233 

Kronenberger  v.  Binz 196,  198 

Krutz  V.  Fisher 246 

Kyle  V.  Green 627 

Lacy  V.  Holbrook 546 

Lacam  v.  Mertins 353 

Ladue  v.  Branch 303 

Lady  Cox's  Case 674 

La  Farge  v.  Rickert 119,  581 

Lafayette  Insurance  Co.  v.  French. . .   421 

Laflerty  v.  Rutherford 358 

Lafeverv.  Bellmyer  174,  175,  187 

Laing  v.  Barclay 564 

Lake  Bigler  Road  Co.  v.  Bedford 666 

Lake  v.  Reed 615 

Lake  v.  Virgina,  etc.,  R.  R.  Co. .   729,  734 

L'  Amoreux  v.  Gould 71,  93,  103 

Lamorieux  v.  Hewit 583 

Lamb  v.  Camden  and.Amboy  R.  R.  Co.  533 

Lamb  v.  Klaus 138 

Lamb  v.  Ricketts 716 

Lamb  v.  Stone 141 

Lambert  v.  Sanford 439 

Lambkin  v.  Nance 387,  409 

Lampman  v.  Milks 294.  296 

Lancaster  Canal  Co.  v.  Parnaby 738 

Lancaster  National  Bank  v.  Taylor. .   599 
Lancaster  Bank  v.  Woodward. .  507,   509 

Lanchester  v.  Frewer 374 

Lander  v.  Castro 258 

Lander  v.  Seaver 343 


Ixx 


TABLE  OF  CASES. 


PAGE. 

Landis  v.  Urie 387 

Laudon  v.  Piatt 172 

Landrum  v.  Trowbridge 620 

Lands  berger  v.  Gorliam 468 

Laue  V.  Cotton 267 

Lane  v.  Hill 193 

Lane  v.  Kasey 684 

Lane  v.  Marshall 433 

Laue  V.  Salter 42,    43 

Laufranchie  v.  MacKenzie 292 

Laug  V .  Fiske 370 

Lang  V .  Waters 215 

Lang  V.  Whidden  ...    671 

Langdon  v.  Castleton 444 

Langdon  v.  Bowen 177 

Langdou  v.  lloane 194 

Langiey  v.  Berry 364 

Langridge  v.  Levy 137,  138 

Langston  v.  S.  C..R.  R.  Co 688,  696 

Lannau  v .  Smith 622 

Launing  v.  Carpenter 84 

Landsden  v.  McCarthy 356,  362 

Lansing  v.  Gaine 556 

Lansing  v.  McKillup 464 

Lansing  v.  Stone 161 

Laplaine  v.  Madison 669 

Larmon  v.  Jordon 87,  103,  665 

Latham  v.  Morrow 483 

Lathrop  v.  Knapp   105 

Lathrop  v.  Morris 611,  612 

Latimore  v.  Simmons 727 

La  Trobe  v.  Hayward 196 

Lauglilin  v.  Marshall 511 

Laurens  v.  Lucas 328 

Laussatt  v.  Lippincott,  216,  223,  244,  273 
Laverone  v.  Mangianti. . . .  3u8,  312,  315 

Laverty  v.  Moore 719 

Law  V.  Cross 224.  234 

Law  V.  Hempstead 123 

Law  V.  Illinois,  etc.,  Railroad  Co. . . .  344 

Law  V.  Smith 207 

Laws  V.  Rand ....    506 

Lawlor  v.  Keaquick 232 

Lawrence  v.  Beaubien 85 

Lawrence  v.  Cooke 723,  725,  728 

Lawrence  v.  Dobyns 626 

Lawrence  v.  Fox 91,     92 

Lawrence  v.  Lawrence 164 

Lawrence  v.  McArter 214 

Lawrence  v.  McCalmont 120 

Lawrence  v.  McGregor 129 

Lawrence  v.  Martin 366 

Lawrence  v.  Taylor 219,  234 

Lawrence  v.  Wilcock 50 

Lawson's  Appeal 205 

Lawson  v.  Bettlson 434 

Lawson  v.  Snyder 687 

Lawson  v.  State 334 

Lazarus  v.  Shearer 239 

Lazard  v.  Wheeler 360 

Leach  v.   Beattie 180 

Leach  v.  Cook 417 

Leach  v.  Hewitt 629 

Leaf  V.  Turton 397 

Leahy  v.  Dugdale 358 

Leake  v.  Sutherland 249,  252 


PAGE. 

Leal  V.  Wigram 456 

Lean  v.  Friedlander 569 

Leas  V.  James 385 

Leavitt  v.  Morgan 689 

Leavitt  v.  Palmer 511 

Leavitt  v.  Putnam  ^ . .  592,  595 

Leavitt  v.  Thompson 63 

Leavitt  v.  Wooster 327 

Lebanon  Bank  v.  Mangan 511 

Lecatt  V.  Sallee 453 

Ledbetter  v.  Walker 234 

Ledford  v.  Smith 512 

Ledwich  v.  McKinn Ill,  367 

Ledyard  v.  Ten  Eyck 713 

Lee  V.  Colshill 700 

Lee  V.  Hunter 422,  423 

Lee  V.  Kimball 537,  528,  530 

Lee  V.  Lee 484 

Lee  V.  Levy 157 

Lee  V.  Munn 481 

Lee  V.  Munroe 263 

Lee  V.  Ruggles 665 

Lee  V.  Selleck 130 

Lee  V.  Stanley 419 

Lee  V.  Swift     581 

Lee  V.  Trustees  of  Fiemingsburgh  .  .   100 

Lee  V.  Waring 690 

Lee  V.  Woolsey 313 

Lees  V.  Whitcomb 375 

Leeds  v.  Bowen 487 

Leeds  v.  Cook 725 

Leeds  v.  Marine  Ins.  Co 280,  381,  283 

Leef  V.  Goodwin 177 

Lelfingwell  v.  White 395 

Leger  v.  Bonnaffee 84 

Legere  v.  Richard 459 

Leggett  V.  N.  J.  Manuf.  and  Banking 

Co 519 

Legge  V.  Thorpe 628 

Lehman  v.  Marshall 158 

Leigh's  Case 431,  432,  475 

Leigh  V.  Everharts  Ex'rs 669 

Leighton  v.  Leighton 650 

Leith  V.  Bush 683 

Leland  v.  Douglass 403 

Lennon  v.  Mayor,  etc.,  N.Y.  city. . .  ,  666 

Lennon  v.  Napper 167 

Lenox  v.  Howland 412 

Lenox  v.   Notrebe 154 

Lent  V.  Hodgman 551 

Leonard  v.  Barker 601,  647 

Leonard  v.  Mason 543,  554,  623 

Leonard  v.  Wilkins 321 

Leow  V.  Stocker 677 

LePage  v.  McCrea 570 

Lerned  v.  Morrill 708 

Lerned  v.  Wannemacher 113 

LeRoy  v.  Beard 223 

Leroy  v.  Veeder 164,  167 

Lesher  v.  Rpesuer 455 

Lesley  v.  Rosson. 188 

Lester  v.  Governor 706 

Lester  v,  Kinne 230,  233 

Lester  v.  Paine 648 

Letton  V.  Goodden 651 

Levi  v.  Abbott 231 


TABLE  OF  CASES. 


Ixxi 


PAGK. 

Leverick  v.  Meigs 240 

Levy  V.  Bank  of  America 508 

Levy  V.  Cohen 86 

Levy  V.  Hampton 704 

Levy  V.  Levy ...  414 

Levy  V.  Peters 507 

Lewis  V.  Berry 363 

Lewis  V.  Buck 425 

Lewis  V.  Burr 632 

Lewis  V.  Commissioners  of  Bourbon 

county 227 

Lewis  V.  Culbertson 389 

Lewis  V.  Ingersoll 215,  236 

Lewis  V.  Kerr 291 

Lewis  V.  Knox 674 

Lewis  V.  Lee 671 

Lewis  V.  Peck 266,  464 

Lewis  V.  Price 292 

Lewis  V.  United  States 362 

Lewis  V.  Lyons 155 

Lewallen  v.  Overton 719 

Libby  v.  Adams 646 

Libb'ev  v.  Hodgdon 415,  421 

Lickbarrow  v.  Mason. .  522,  523,  524,  526 

528,  529 

Lichfield  v.  Simpson 42 

Lichtenheim  v.  ISoston  &  Providence 

R.K.  Co 241 

Lick  V.  Ray 662 

Lieber  v.  Goodrich 546 

Ligat  V.  Commonwealth 737 

Liggett  V.  Weed 025 

Lightly  V.  Clouston 405 

Lightbody  v.  Ontario  Bank 573 

Lilly  V.  Commissioners 501 

Lilly  V.  Hayes Ill 

Lillie  V.  Hoyt 254 

Lime  Rock  Bank  v.  Mallett 4.99 

Lincoln  v.  Flint 490 

Lincoln  v.  McClatchie 270 

Lindley  v.  Dempsey 728 

Lindsey  v.  Bates 365 

Lindsay  v.  Moore 391 

Lindas  v.  Brad  well 564,  621 

Lineker  v.  Ayeshford 524 

Linn  Rock  Bank  v.  Hewett 615 

Lining  v.  Peyton 328 

Linnendoll  v.  Terhune 301 

Linnscott  v.  Fuller 413 

Limton  v.   Hart 182 

Linton  v.  Hurley 361 

Linthicum  v.  Remington 408,  470 

Liotard  v.  Graves 232,  243 

Lippett  V.  Kelly 123 

Lippincott  v.  Warder 661 

Lisbon  v.  Bowdoiu 720 

Liscomb  v.  Kitrell 222 

Litchfield  v.  Falconer 93 

Little  V.  Cook 489,  491,  49e 

Little  V.  Hobbs 94,  119 

Little   V.  Morgan 386 

Little  V.  McKeon 447 

Little  V.  Phcenix  Bank 506,  546 

Little  V.  Slackford 550,  559 

Littlefield  v.  Maxwell 710 

Livermore  v.  Rhodes 418 


PAGE. 

Livett  V.  Wilson 292 

Livezy  v.  Philadelphia 161 

Livings  v.  Wiler 233 

Livingston  v.  Adams 161 

Livingston  v.  Arnoux 704 

Livingston  v.  Bank  of  New  York. . . .  514 

Livingston  v.  Byrne 485 

Livingston  v.  Cox 464 

Livingston  v.  Harris 156 

Livingston  v.  Livingston 351,  653 

Livingston  v.  Newkirk 351 

Livingston  v.  RadclifF 435 

Livingston  v.  Rogers 394 

Lloyd  V.  Calston 247 

Lloyd  V.  Galbraith ^. . . . .   352,  353 

Llovd  V.  General  Iron  Screw  Collier 

Co 526 

Llovd  V.  McCafEery 503 

Lloyd  V.  Scott 326 

Lobdell  V.  Bushnell 419 

Lobdell  V.  Hopkins 119,  559,  579 

Locke  V.  Lomas 330 

Locke  V.  Stearns 287 

Locklin  v.  Moore 559,  581 

Lock  wood  v.  Barnes 301 

Lockwood  v.  Bull    93 

Lock  wood  v.  Blackhawk  County  ....  440 

Lockwood  v.  Thorne 192, 193,  194,  195 

Lodge  V.  Phelps 130 

Loftus  V.  Clark 562 

Logan  V.  Austin 345 

Logan  V.  Logan 211 

Logan  V.  Plummer 683 

Logan  V.  Tibbott 123 

Lombard  v.  Ruggles 357 

Long  v.  Bailie 605 

Long  v.  Colburn 238 

Long  V.  Constant 359 

Long  V.  Heinrich 368 

Long  V.  Long 327  • 

Long  V.  New  York  Central   Railroad 

Co 533 

Long  V.  Orsi 460 

Long  V.  Pool 242 

Longendyke  v.  Longendyke 343 

Longmeid  v.  Holliday 136,  138 

Longworth  v.  Scriven 493 

Lonsdale  v.  Brown 98 

Lonsdale's  Estate 364 

Loomis  v.  Newhall Ill 

Loomis  V.  Simpson 216 

Loomis  V.  Terry 309 

Loop  V.  Litchfield 138 

Loper  County  v.  Hart 651 

Lord  V.  Chesebrough 590 

Lord  V.  Commissioners  of  Sidney. . . .  714 

Lord  Hardwicke  v.  Vernon 179 

Lord  V.  Veazie 142 

Loring  v.  Boston 101 

Loring  v    Norton 714 

Losee  v.  Buchanan 144,  161,  337 

Losee  v.  Clute 138 

Loud  V.  Charlestown 665 

Louge  V.  Link 308 

Louisville   &   Frankfort   Railroad   v. 

Ballard 305 


Ixxii 


TABLE  OF  CASES. 


PAGE. 

Louisville  Insurance  Co.  v.  Bland. . .  183 
Louisville,  etc.,  Canal  Co.  v.  Murphy,  733 
Louisville  &  Nashville   Railroad  Co. 

V.  VVainscott 304 

Lounslniry   v.  Depew 587 

Lounsbury  v.  Purdy 669 

Love  V.  Hall 444 

Love  V.  Sheffelin 446 

Love  V.  Shoape 678 

Love  V.  White 107 

Lcveden  v.  Loveden 201 

Lovett  V.  Adams 567 

Lovett  V.  Brown 277 

Lovegrove  v.  Cooper 349 

Lovingtou  V.  Cpuuty  of  St.  Clair,  710,  714 

Loveioy  v.  Glipin   428 

Lovejoy  v.  Webber    . .  .489,  490,  491,  492 

Lovelock  V.  Franklyn 725 

Lovell  V.  Evertson 595 

Lowe  and  Richardson 533 

Low  V.  Hutchinson 450 

I/owe  V.  Peers 723 

Low  V  Perkins 218 

Low  V.  Staples 663,  666 

Lowe  V.  Weatherly 97 

Lowber  v.  Le  Roy 121,  125 

Lowery  v .  Barney 673 

Lowry  v.  Harris 234 

Lovvery  v.  Steward 553,  557,  623 

Lowry  v.  Commercial,  etc.,  Bank. . . .  499 

Lowry  v.  Murrell 573 

Lowndes  v.  Dickerson 299 

Loyd  V.  Malone 482,  483 

Lucas  V.  Barrett 155 

Lucas  V.  Flynn 340 

Lucas  V.  Trumbull 305,  306 

Luce  V.  Carley 711 

Luckhart  v.  Ogden 119 

Ludlow  V.  Ramsey 420 

•  Ludlow  V.  Simond 174,  175,  179 

Luff  V.  Pope 534,  619 

Lumbard  v.  Aldrich 500 

Lumley  v.  Gye 36 

Lumley  v.  Palmer 622 

Lunt  V.  Bank  of  North  America,  505,  534 

Lunt  V.  Holland 711 

Lunning  v.  Kemp 451 

Lupton  V.  Lupton 169 

Luqueer's  Estate 206 

Luqueer  v.  Prosser 543 

Luques  v.  Thompson 695 

Lush  V.  Hastings 444 

Luttrell  V.  Hazen         288 

Lyall  V.  Higgins 398 

Lyles  V.  Hatton 252 

Lyle  V.  Murray 252 

Lyle  V.  Richards 7 

Lyme  v.  Allen 1.52 

Lyman  v.  Lyman 353 

Lynam  v.  Califer 543,  561 

Lynch  V.  Commonwealth 445 

Lynch  v.  Livingston 121 

Lynch  v.  Onondaga  Salt  Co 74 

?jynch's  Adm'r  v.  Petrie 190 

Lynde  v.  Judd 471 

Lynde  v.  Montgomery 417 


PAGE. 

Lynn  v.  Burgoyne 236 

Lyon  V.  Adamson 261 

Lyon  V.  Adde 704 

Lyon  V.  Alcord 394 

Lyon  V.  Burgoyne 216 

Lyon  V.  Clark 683 

Lyon  V.  Hall 693 

Lyon  V.  Hunt 663 

Lyon  V.  Jerome 145,  736 

Lyon  V.  Marshall 539 

Lyon  V.  McLaughlin 652 

Lyons  v.  Merrick 317 

Lyons  v.  Miller 175 

Lyon  V.  Williams 439,  441 

Lysaught  v.  Bryant 647 

Lytle  V.  Beveridge 346 

Lytle  V.  Pope , 185 

Maber  v.  Masseas 575 

Macdonnell  v.  Harding 241 

Machell  v.  Kinnear 565 

Mack's  Appeal 681 

Macon  v.  Sheppard 105 

Mactier  v.  Frith 86 

Maddux  v.  Be  van 334,  388,  436 

Madison  R.  R.  v.  Norwich 387 

Madison,  etc.,  Co.  v.  Stevens 679 

Magnin  v.  Dinsmore 533 

Mager  v.  Hutchinson 676 

Magregor  v.  Rhodes 599 

Mahan  v.  Brown 36,  145,  393,  396 

Mahaffey  v.  Petty 409 

Mahoney  v.  Kekull 259 

Maitlaud   v.   Citizens'   Nat.  Bank  of 

Baltimore 613 

Mainprice  v.  Westly 487 

Majors  v.  Rice 719 

Maker  v.  Osgood 348 

Malbon  v.  Birney 386 

Malbon  v.  Southard 596 

Malcolm  v.  Allen 168 

Mallan  V.  May 130 

Malley  v.  Altman 410 

Malone  v.  Murphy 846 

Maltby  v.  Christie 479 

Manchester  Bank  v.  Fellows 457 

Mandell  v.  Peet 415 

Manders  v.  Williams 285 

Mandeville  v.  Mandeville 655,  658 

660,  661 

Mandeville  v.  Reynolds 436 

Mandeville  v.  Union  Bank  of  George- 
town    509 

Mangum  v.  Ball 268,  269,  270,  284 

Manhattan  Life  Ins.  Co.  v.  Farmers', 

etc.,  Nat.  Bank 519 

Manhattan  Life  Ins.  Co.  v.  Warwick,  215 

Manier  v.  Myers 293 

Maniort  v.  Roberts 543 

Mankin  v.  Chandler 411 

Manley  v.  Headley 412 

Mann  v.  City  of  Utica 663,  669 

Mann  v.  Moors 557 

Mann  v.  Pearson 708 

Mann  v.  Witbeck 123 

Manning  v.  Gasharie 233 


TABLE  OF  CASES. 


Ixxiii 


PAGE. 

Manning  v.  Randolpli 326 

Mansfield  v.  Borland 454 

Mansfield  &  C.  R.  R.  Co.  v.  Veeder  . .   121 

Mansfield  v.  Wilkerson 461 

Marboarg  v.  Smith 43G,  437 

March  v.  Ludlain 469 

Mardia  v.  Shackleford 461 

Marine  Bank  v.  Clements 586 

Marine  Bank  v.  Fnlton  Bank  . . .  501,  518 

Mar.  Ins.  Co.  v.  Hodgson. 172 

Marine  Nat  Bank  v.  Nat.  City  Bank,  507 

508,  509 
Marine  Bank  of  Chicago  v.  Rushmore,  499 

Marine  Bank  v.  Smith 637 

Mai in,^  Bank  v.  Wright 527 

Maiine  Ins.  Co.  v.  Young 387 

Markham  v.  Brown 343 

Markle  v.  Harttield 572 

Markley  v.  Amos 437 

Markley  v.  Withers 385 

Marmaduke  v.  Hannil)al,etc.,R.R.  Co.,  650 

Marret  v.  Equitable  Ins.  Co 549 

Marryott  v.  Young 687 

Marselis  v.  Seaman 214 

Marsh  v.  Burt 709 

Marsh  v.  City  of  Brooklyn. .  662,  665,  667 

Marsh  v.  Haywood 493 

Marsh  v.  Jelf 479 

Marsh  v.  Jones 308,  316 

Marsh  v.  Reed 650 

Marsh  v.  Whitmore  242 

Marsh  v.  Williams 411 

Marshall  v.   Betner 428,  429 

Marshall  v.  Hamilton 690 

Marshall  v.  Joy 467 

Marsliall  v.  Means 361 

Marshall  v.  Mcech 455 

Marshall  v.  McPhersou 378,  390 

Marshall  v.  Parsons 269,  270 

Marshall  v.  Rutton 671 

Marshall  v.  Thompson 326 

Marshall  v.  White 413 

Marshall  v.  York,  Newcastle  &  Ber- 
wick R.  R.  Co 136 

Marslon  v.  Rowe 664 

Martin  v.  Almond 237 

Martin  v.  Anderson 472 

Martin  v.  Black 86,  96.    97 

Martin  v.  Blydeuburgh 607 

Martin  v.  Branch  Bank 421 

Ma'rtin  v.  Chauntry 547 

Martin  v.  Clark 369 

Martin  v.  Dortch 675 

Mariiu  v.  Farnsworth 226,  227,  240 

Martin  v.  Flowers 237 

Martin  v.  Hamilton 626 

Martin  v.  Hill 130 

Martin  v.  IngersoU 634 

Martin  v.  O'Brien 710 

Martin  v.  Richardson 366 

Martin  v.  Taylor 696 

Martin  v.  Veeder 369 

Martin  v.  Waddell 710 

Martin  v.  Wright's  Adm'rs 269 

Martine  v.  International  Life  Insur- 
ance Society 291 


Marvin  v. 
Marvin  v. 
Marvin  v. 


PAGE. 

Marvin  v.  Ellwood 461 

Marvin  v.  Inglis 360 

McCullum 565 

Treat 101 

Wilkins 491 

Marzetti  v.  Williams 148,  505 

JMassachusetts  Life  Ins.   Co.  v.   Car- 
penter    241 

Massie  v.  Mann 446 

Massey  v.  Davies , 1 79 

Mason  v.  Bauman : 246 

Mason  v.  Ditchbourne 702 

Mason  v.  Lickbarrow 521 

Mason  v.  Man 180 

Mason  v.  Ring 452,  466 

Mason  v.  Sprauge 362 

Mason  v.  Stewart 435 

Master  v.  Edwards 550 

Master  v.  Miller 368 

Masterson  v.  Le  Claire 439 

Matchiu  v.  ]\Iatchin 201 

Matthews  v.  Baxter 672 

Matthews  v.  Cribbett 728 

Matthews  v.  Dare 570 

Matthews'  Estate 469,  470 

Matthews  v.  Fiestel 304 

Mathews  v.  Hamilton 224 

Matthews  v.  McPherson 9,  157 

Matthews  v.  Pass 150 

Mathews  v.  Terry 342 

Matthewson's  Case 687 

Matteson  v.  Moyes 90 

Mattox  V.  Hightstrue 154 

Matter  v.  Bleakly 463 

Matter  of  Aitkin 463 

Matter  of   Bangs 659 

Matter  of   Beckwith 82 

Matter  of  Bliss 455 

Matter  of  Cooper 432,  433 

Matter  of  Dakin 463 

Matter  of  Dorsey 433 

Matter  of  Fitzgerald ..    416 

Matter  of  Franklin  Bank 503 

Matter  of  Galloway 422 

Matter  of  Henry 431 

Matter  of  Hurd 421 

Matter  of   Mills 433 

Matter  of  Peterson 475 

Matter  of  StaflFord 241 

Matter  of  Thompson 416 

Matter  of  Westzinthus 529,  530 

Matter  of  Wood 432 

Mauran  v.  Lamb 637 

Maud  V.  Waterhouse 98 

Mauri  v.  HefFernan 259 

Maury  v.  Ingraham 514,  515 

Maxwell  v.  Kennedy 153 

Maxwell  V.  Lea 411 

Maxwell  v.  Owen 436 

Maxwell  v.  Palmerton 320 

May  V.  Babcock 531 

Mav  V.  Baker 411 

May  V.  Bliss 288 

May  V.  Brownell 189 

May  V.  Burdett 311 

Mayv.  Kloss 193 


Ixxiy 


TABLE  OF  CASES. 


PAGE. 

May  V.  Miller 555 

May  V.  Seyler 611 

Mayer  v.  Foulkrod 486 

Maynard  v.  Boston  &  Maine  R.  R.  . .  .  ^05 

Maynard  v.  Tidaall 385,  401 

Mayne  v.  Griswold ....  163,  706 

Mayor,  etc,  of  Georgetown  v.  Baker,  476. 

Mayor  of  Colcliester  v.  Brooke 02 

Mavor  of  Auburn  v.  Draper 253 

Mayor  of  New  York  v.  Genet. .  417,  420 

Mayor,  etc.,  v.  Patten 177 

Mayor  of  York  v.  Pilkington 651 

652 
Mayor,  etc.,  of   New   York    v.   New 

York  &  Staten  Island  Ferry  Co 733 

Mayor  of  Baltimore  v.  Williams 372 

M'Alesander  v.  Wright 457 

McAllister  v.  Reab 377 

McAllister  v.  Smith 13^ 

McArthur  v.  Green  Bay,  etc.,   Canal 

Co 789 

McArthar  v.  Henry 718 

McAuley  V.  State 339 

McAvoy  V.  Long 115 

McBee  v.  Loftie 357 

McBlain  v.  Cross 89 

McBride  v.  Farmers'  Bank 415 

McBride  v.  Lynd 308 

McBroom  v.  The  Governor 254 

'  McCaffrey  v.  Wooden 273 

McCahill  v.  Kipp 309 

McCall  V.  Taylor 555 

McCandlisli  v.  Hopkins 676 

McCaudless  v.  McWha 241 

McCann  v.  McLennan 437,  440 

McCants  v.  Wells 524 

M'Caraher  v.  Commonwealth  ......  690 

McCargo  v.  Crutcher 387 

McCarty  v.  Beach 701 

McCarty  v.  Howell . ; 120 

McCarthy  v.  Mansfield 696 

McCaskiil  v.  Elliott.       308,  312,  313,  315 

McCaw  V.  Blewit 205,  207 

McCaw  V.  Burk 208,  210 

McCleary  v.  Edwards 118 

McClellan  v.  Longfellow 468 

McClellan  v.  Osborne 180 

McClellan  v.  Reynolds 260,  261 

McClelland  v.  West 192 

McClernan  v.  Hall 256 

McCloskey  v.  Miller 373 

McClurg's  Appeal 674 

McClure   v.  Philadelphia,  etc..    Rail- 
road Co 344 

McCollum  V.  Morrison 151 

McCollera  v.  White ...  412,  421 

McComb  V.  Wright 483,  485 

McConnell  v.  Brown 438 

McConnell  v.  Thomas 279 

McConnell  v.  Van  Aerman 63 

McCormack  v.  Obannon 185 

McCormick  v.  Bush 215 

McCormick  v.  Wheeler 232 

McCornoy  v.  Stanley 98 

McCoy  V.  Galloway 707 

McCoy  V.  Herbert 357 


PAGE* 

McCoy  V.  Lemon 337 

McCrary  v.  Carrington 568 

McCrea  v.  Marsh 340 

McCready  v.  Thomson 293,  295 

McCroskey  v.  Mabey 372 

McCullock  V.  Aten 716 

McCulloch  V.  McKee 284 

McCulloHgh  V.  Colby 41 

McCnllough  V.  McCullough 405 

McCuUough  V.  Wall 713 

McCullough  V.  Wainright 711 

McCurdy  v.  Rogers 258 

McDermott  v.  Doyle 695 

McDonald  v.  Campbell , 153 

McDonald  v.  Falvey 493 

M'Donald  v.  Faulkner 400 

McDonald  v.  Kneeland 368 

McDonald  v.  Longbottom 118 

McDonald  v.  Simpson 119 

McDonald  v.  Todd 442 

McDonnell   v.    Pittsfield  and   North 

Adams  Railroad 305 

McDonough  v.  Delassus 254 

McDougal  V.  Armstrong 656,  661 

McDougald  v.  Dawson 235 

McDougald  v.  King 213 

McDowell  V.  McCullough 704 

McDowell  V.  New  York  Central  Rail- 
road Co 304 

McDowell  V.  Shields 668 

McDowell  V.  Simms 482 

McEwan  v.  Morey 395 

McEwen  v.  Davis 503,  504 

McFarland  v.  Crary 395,  464 

McFarland  v.  Farmer 424 

McFerran  v.  Chambers 398 

McGavock  v.  Woodlief 270 

McGehee  v.  Hansell 447 

McQill  V.  Compton 317 

McGill  V.  McGill 465 

McGinnity  v.  Languerenne 393 

McGlinchy  v.  Hall 361 

McGoldrick  v.  Willets 406 

McGrath  v.  Clark 557 

McGrath  v.  Hardy 410 

McGraw  v.  Walker 641 

McGruder  v.  Bank  of  Washington. . .  620 

McHenry  v.  Cawthorn  419 

Mclntire  v.  Clark 394 

Mclntyre  v.  Kennedy 568 

Mclntyre  v.  Warren 196,  198 

McKay  v.  Green 354 

McKean  v.  Shannon 691 

McKecknie  v.  Sterling 173 

McKee  v.  Bartley 394 

McKee  v.  Commonwealth 690 

McKee  v.  Hoover 358 

McKee  v.  Judd 360 

McKellar  v.  Couch 438 

McKenzie  v.  Durant 626 

McKenzie  v.  Nevius 374 

McKenzie  v.  Ward  well 454 

McKillip  v.  McKillip 695 

McKim  v.  Odom 387 

McKinlay  v.  Morrish 534 

MacKiuley  v.  McGregor 214 


TABLE  OF  CASES. 


Ixxv 


PAGE. 

McKinley  v.  Tucker 256 

McKinley  v.  Watkius 102 

McKinney  v.  Miller 675 

McKuight  V.  Duulap 406 

McKnight  v.  Lewis 645 

McKnight  v.  Wheeler 600 

McKoue  V.  Wood 816 

McLain  v.  Matlock 843 

McLaren  V.  Hall 214 

McLaren  v.  Steapp 175 

McLaren  v.  Watson's   Esrs 583 

McLaughlin  v.  Hutchins 696 

McLoughliu  V.  McGovern 600 

McLean   v.  Clark    470 

McLean  v.  McDugald 704 

McLeJland  v.  Snider 404 

McLemore  v.  Goode 325 

McLeod  V.  Drummond 328,  329 

McLeod  V.  Savannah,   etc..   Railroad 

Co  . .    729,  734 

McLeod  V.  Snee 554 

McLin  V.  McNamara 176 

McLure  v.  Steele 207 

McMahon  v.  Alliu 369 

McMahon  v.  Franklin 252 

McMahon  v.  McGraw 250 

McMahon  v.  Smith 452,  46(1 

McManners  v.  State 469 

McMartin  v.  Bingham 176,  187 

McMasters  v.  Pennsylvania  Railroad 

Co 243 

McMechen  v.    Mayor,    etc.,  of   Balti- 
more    476 

McMillan  v.  Eastman 388 

McMillen  v.  Staples  143 

McMillian  v.  Wallace 400 

McMinn  v.  Richtmyer 221 

McMurray  v.  Rawsou 173 

McNair  v.  Gilbert    602,  604 

McNairy  v.  Thompson 122 

McNamara  v.  King 346 

McNaughtou  v.  Partridge 218 

McNeilly  v.  Richardson 101 

McNinch  v.  Ramsey 698 

McNulty  V.  Collins 394 

McNutt  V.  McMahon 676,  678 

McPherson  v.  Meek 679 

McPherson  v.  Snowden 411 

McPike  V.  Pen 665 

McQueen  v.  Middletown   Man.  Co.    .  421 

McKoberts  v.  Washburn 651 

M'Tavish  v.  Dunning 472 

McVey  v.  Blair 202 

McWhorter  v.  McMahan 219 

McWilliams  v.  Martin 121 

McWilliams  v.  Willis 383 

Meacham  v.  Dudley 462 

Mead  v.  Engs 637,  646,  647 

Mead  v.  Young 590 

Meads  v.  Merchants'  Bank 508,  624 

Meader  v.  Stone 335 

Meadows  v.  Meadows 206 

Meadows  v.  Tanner 484 

Meadville  v.  Erie  Canal  Co 732 

Meagher  v.  Bachelder 897 

Meakings  v.  Cromwell 587 


PAGE. 

Means  v.  Swormstedt 288 

Mears  v.  Adreon 273 

Mechanics'  Bank  v.  Bank  of  Colum- 
bia  239,  503 

Mechanics  and  Traders'  Nat.  Bank  v. 

Crow 611 

Mechanics'  Bank  v.  Earp 517 

Mechanics'  Bank  v.  Griswold 627 

Mechanics'  Bank  v.  Livingston 593 

Mechanics'  Bank  v.  Merchants'  Bank,  241 
^lechanics'    Banking   Association    v. 

Place 646 

Mechanics'  Bank  v.  Schuyler 593 

Mechanics   and    Farmers'    Bank    v. 

Smith 500,  510 

Mechanics'  Bank  v.  Straiton 542 

Mechanics    and    Farmers'    Bank    of 

Albany  v.  Wixson 97 

Meehan  v.  Forrester 231 

Meek  v.  Fox 419 

Meeker  v.  Claghorn 285 

Meeker  v.  Meeker 205 

Megee  v.  Beirne 411 

Megary  v.  Funtis 435 

Megham  v.  Mills 870 

Meiiaify  v.  Share 365 

Melchoir  v.  McCarty 196 

Mellen  v.  Thompson 389 

Meloy  v.  Dougherty 666 

Melton  V.  Howard 492 

Mendenhall  v.  Klinck 362 

Menkens  v.  Watson 233 

Mentges  v.  N.  Y.  and  Harlem  R.  R. 

Co 317 

Merchants'  Bank  v.  Birch 629,  686 

Merc.  Mat.  Ins.  Co.  v.  Chase 523 

Merchants'    Exchange  Nat.  Bank  v. 

Cardozo 623 

Merchants'  Bank  v.  Davis 97 

Merchants'  Bank  v.  Easley 629 

Merchants'  Bank  v.   Elderkin 635 

Merchants'  Bank  v.  Marine  Bank ....  519 

Merchants'  Bank  v.  Spicer. . .    554 

Merchants'  Bank  v.  State  Bank 508 

Meredith  v.  Richardson 896 

Merithew  v.  Sampson 184 

Merriam  v.  Wolcott 367 

Merrick  v.  Brainard 860 

Merrick's  Estate 291 

Merrick  v.  Wagner  ....    221 

Merritt  v.  Lambert 430,  453 

Merritt  v.  Lyon 659 

Merritt  v.  Marshall 491 

Merritt  v.  O'Neil 803 

Merritt  v.  Todd 559,  640 

Merrill  v.  Grinnell 360 

Merrill  v.  Ithaca  and  OwegoR.  R.  Co. 

189,  190,  382 

Merrill  v.  Melchoir 121,  127 

Merrill  v.  Rhodes 210 

Merrimann  v.  Russell 721 

Merry  man  v.  Ryder 396 

Mesnard  v.  Aldridge 477 

Messner  v.  Hutchins    . .    413 

Messer  v.  Woodman 389 

Metzgar  v.  Metzgar 366 


Ixxvi 


TABLE  OF  CASES. 


PAGE. 

Mews  V.  Carr 486,  487 

Meyer  v.  Hibsher    636 

Meyer  v.  Muscatine 688 

Miclit'ner  v.  Dale , .,  881 

Michigan,  etc.,  R.  R.  Co.  v.  Gongar. .  225 
Michigan  Ins.  Co.  v.  Leavenworth. .  .  555 

Miclioud  V.  Girod 246,  250 

Mickles  v.  Colvin 566 

Micl^elthwaite  v.  Rhodes 446 

Middle  Bridge  v.  Brooks 734 

Middle  Bridge  Corporation  v.  Marks,  780 
M-iddieton    v.     Boston      Locomotive 

Works 626 

Middletou  v.  Middleton 209 

Middleton  v.  Perry 715 

Middletou  v.  Pritchard 712 

Middlesex  v.  Thomas 569 

Middlebury  Case 563 

Milbourn  v.  Ewart 672 

Miles  V.   Erwin 466,  467 

Miles  V.  O'Hara 447 

Mill-dam  Foundry  v.  Hovey 415 

Mill  River,  etc.,  Co.  v.  Smith 716 

Mills  V.  Bank  of  United  States. ,  499,  500 

Mills  V.  Catlin 124 

Mills  V.  Clarke 446 

Mills  V.  Hunt 480 

Mills  V.  Hyde 186 

Mills  V.  Jefferson 689 

Mills  V.  Lee 96 

Mills  V.  Mills 466 

Mills  V.  Murry 368 

Mills  V.  New  York  and  Harlem  R.  R. 

Co 807 

Mills  V.  Stevvart 43 

Mills  V.  Wvman 108 

Miller's  Appeal 205,  207,  208,  212 

Miller  v.  Bledsoe 598 

Miller  v.  Board  of  Education  of  Sac- 
ramento   233 

Miller  V.  Creyon 379 

Miller  V.  Elliott 700 

Miller's  Estate 211 

Miller  v.  Fenton 183 

Miller  V.  Gamble 610 

Miller  v.  Gaston 583,  588 

Miller  v.  Hillaird 404 

Miller  v.  Hoyle 365 

Miller  v.  Kimbray 815 

Miller  V.  Knox 422 

Miller  v.  Lumsden 570 

Miller  v.  Malouey ...  359 

Miller  v.  Miller 887,  444 

Miller  v.  Munson 418 

Miller  v.  Neiman *. . .   152 

Miller  v.  Nichols 685 

Miller  v.  Proljst 193 

Miller  v.  Race 512,  546,  595,  618 

Miller  v.  Rosier 728 

Miller  v.  Thompson 883,  543 

Miller  v.  Watson 378 

Miller  v.  Weeks 472,  541 

Miller  v.  Wells 167 

Miller  v.  Williamson 828 

Miller  v.  Wilson 212,  460 

Miller  v.  Wooda 606 


PAGB. 

Milliman  v.  Neher 273 

Million  V.  Salisbury 806 

Mil  ward  v.  Ingram 373 

Milwaukie,   etc.,  R.    R.    Co.   v.   Mil- 

waukie,  etc. ,  R.  R.  Co 361 

Minis  V.  McDowell 569 

Minard  v.  Mead 288 

Mineral  Point  R.  R.  Co.  v.  Keep 421 

Minnesota  Central  R.   R.  Co.  v.  Mor- 
gan  249 

Minet  v.  Morgan 468 

Minnett  v.  Forrester 290 

Minor  v.  Mayor,  etc.,  of  N.  Y. . .   718,  720 

Minor  v.  Mechanics'  Bank 509 

Minor  v.  Mechanics'  Bank  of  Alexan- 
dria   224,  691 

Minor  v.  Smith 438,  450 

Minturn  v.  Main 479 

Mitchell  V.  Bass 708 

Mitchell  V.  Bromberger 470 

Mitchell's  Case 471 

Mitchell  V.  Culver 555,  593 

Mitchell  V.  Darricott 683 

Mitchell  V.  Ede 524,  525 

Mitchell  V.  Gile 385 

Mitchell  V.  Greene 175 

Mitchell  V.  Kingman 400 

Mitchell  V.  Mayor,  etc.,  of  Rome  ....   144 

Mitchell  V.  Mitchell 206,  207,  209 

Mitchell  V.  Ostrom 545 

Mitchell  V.  Rome  R.  R.  Co 563 

Mitchell  V.  Sproul 184 

Mitciiell  V.  Vance 673 

Mitchell  V.  Williamson 701 

Mitchell  V.  Wiuslow 355,  856 

Mixer  v.  Coburn 877 

Moar  v.  Wright 98 

Mobley  v.  Clark 636 

Mobile,  etc.,  R.  R.   Co.  v.  McArthur,  844 

Moir  V.  Brown 449 

Moir  V.  Hopkins 288 

Mollau  V.  Griffith 353 

Mouahan  v.  Story 358 

Moncrief  v.  Golsborough 482 

Mondel  v.  Steele 377 

Moudnoch  R.  R.  v.  Felt 115 

Monroe  v.  Bishop 414 

Monroe  v.  lloti 569 

Monson  v.  Hawley 438 

Montague  v.  Gaddis 417 

Montgomery  County  Bank  v.  Albany 

City  Bank 251,  266,  516 

Montgomery  v.  Ives 193 

Montgomery  County  Bank  v.  Marsh,  631 

Moody  V.  Burton 141 

Moody  V.  Holcomb 664 

Moody  V.  Threlkeld 539 

Moody  V.  Webster 277 

Moody  V.  Wright 355 

Mooney  v.  Kennett 346 

Mooney  v.  Lloyd 451 

Mooers  v.  White 188 

Moor  V.  Adams 345 

Moore  v.  Allen 674 

Moore  v.  Anderson 539 

Moore  v.  Appleton 183 


TABLE  OF  CASES. 


Ixxvii 


Moore  v.  Beauchamp 252 

Moore  v.  Bracken 468 

Moore  V.  Cockcroft 615 

Moore  v.  Cord 662 

Moore  v.  Cross 596,  601 

Moore  V.  Dial 705 

Moore  v.  Fall 166 

Moore  v.  Fitzwater 96 

Moore  v.  Garwood 115,  116 

Moore  v.  Holland 115 

Moore  v.  Holt 414,  421 

Moore  v.  Mandlebaum 246 

Moore  v.  Moore 246 

Moore  v.  Penn 279 

Moore  v.  Perpetual  Ins.  Co 127 

Moore  v.  Pierson 17,    86 

Moore  v.  Stainton 410 

Moore  v.  Stanley 428 

Moore  v.  Tucker 635 

Moore  v.  Witlienburg 425 

Moores  v.  White 422 

Morange  v.  Edwards 363 

Moran  v.  McSwegail 404 

Moreau  v.  Dumagene 269- 

Moreliead  v.  Hunt 482 

Moreliead  v.  Parkersburgli  Nat.  Bank,  558 

Morehouse  v.  Northrop 288 

Moreland  v.  Page '.........  714 

Morey  v.  Haman 118,  123,  125 

Morford  v.  Mastin Jt. . .  376 

Morgan  v.  Abergavenny 302 

Morgan  v.  Avery 416 

Morgan  V.  Bank  of  State  of  N.  Y.,642,  643 

Morgan  v.  Bank  of  Louisville 632 

Morgan  v.  Congdon 274 

Morgan  v.  Morgan 651 

Morgan  v.  Pebrer 398 

Morgan  v.  Roberts 465 

Morgan  v.  Still 290 

Morgan  v.  Woodsworth 648 

Morgan  v.  Yarborough 723 

Moritz  V.  Melhorn 724 

Morrill  v.  Brown 511 

Morrell  v.  Frith 116 

Morrell  v.  Quarles 100,  101 

Morrow  v.  Wood 342 

Morris  v.  Burton 398 

Morris  v,  Cleasby 281 

Morris  v.  Edwards 512 

Morris  v.  Lee 543 

Morris  v.  Miller 199 

Morris  v.  Mowatt 188 

Morris,  etc.,  K.  R.  Co.. v.  Newark. .  . .  145 

Morris  v.  Parham 404 

Morris  v.  Piatt 338 

Morris  Canal  Co.  v.  State 738 

Morris  v.  Thomas 152 

Morris  v.  Watson 227,  231,  273 

Morrison  v.  Campbell 357 

Morrison  v.  Currie 600 

Morrison  v.  Deaderick 361 

Morrison  v.  Marquardt 295 

Morrison  v.  Rogers 406 

Morrison  v.   Welty 568 

Morse  v.  Allen 399 

Morse  v.  Clayton 587 


Morse  v.  Nixon 304 

Morse  v.  Porter 450 

Morss  V.  Salisbury 131 

Mortimer  v.  Bell 484 

Morton  v.  Dean 485 

Morton  v.  Fletcher 673 

Morton  v.  Naylor 363,  546,  552,  576 

Morton  v.  Pearman 413,  414 

Morton  v.  Rogers 193 

Morton  v.  Shopee 332,  333 

Mossop  V.  Eadon 163 

Mosely  v.  Jones 393 

Moss  v.  Riddle 679 

Moses  v.  Franklin  Bank 505 

Moses  v.  Macferlan 374,  409 

Moses  v.  Murgatroyd 350,  351 

Moses  V.  Trice 165,  166,  603 

Moses  V.  Waterbury  Button  Co 360 

Mott  V.  Coddington 21 

Mott  V.  Foster ...  438 

Mott  V.  Hicks 588,  589,  598 

Mott  V.  Lawrence ■ 412 

Mott  V.  Richtmyer 123 

Motley  V.  Head 290 

Mottram  v.  Mills 597 

Moulton  V.  Bowker 434 

Mounsey  v.  Drake 685 

Mount  V.  Lyon 110 

Moxon  V.  Bright 179 

Moye  V.  Cogd^ll. 435,  436 

Mudgett  V.  Day 284 

Mulhall  V.  Quinn 99,  359 

Muldon  V.  Whitlock 568.  569 

Muldrow  V.  Caldwell 540,  541 

Mullen  V.  Keetzleb 248 

Mullen  V.  Strieker 295,  296,  297 

Mullins  V.  Akin 667 

MuUer  v.  Earle 41 

Mullett  v.  Mason 307,  318 

Mulligan  v.  Baring 668 

Mumford  v.  Getting 118 

Mumford  v.  Murray 463 

Munn  v.  Commission  Co 228 

Muun  V.  Worrell 708 

Munger  v.  Shannon 551 

Munnerlyn  v.  Alexander 427 

Munroe  v.  Luke 173 

Munsell  v.  Temple 863 

Murdock  v.  Aikin 101,  263 

Murdoch  v.  Caruthers 540 

Murgoo  V.  Cogswell 303 

Murlock  V.  Brown 705 

Murphy  v.  Baldwin 419 

Murphy  v.  Lippe 276 

Murphy  v.  Nathans 208 

Murphy  v.  Winter 439 

Murrell  v.  Johnson * .  698 

Murry  v.  Ballou 327 

Murray  v.  Blatchford 587 

Murray  v.  Boyne .333,  338,  343 

Murray  v.  Carrett Ill 

Murray  v,  Carothera 261 

Murray  v.  Gardner 689 

Murray  v.  House 439 

Murray  v,  Judah 367,  505 

Murray  v,  Kennedy 263 


Ixxviii 


TABLE  OF  CASES. 


Murray  v,  Lardner 614,  688 

Murray  v,  Mann 139,  481 

Murray  v.  Toland 194 

Murray  v.  Vanderbilt 253,  255 

Musgrove  v.  Chambers 152 

Musselman  v.  Oakes 539 

Musson  V.  Lake 639 

Mussen  v.  Price 573 

Mussey  v.  Eagle  Bank 508 

Mussey  v.  Scott 237 

Mutford  V.  Walcot 592 

Myers  v,  Davis 368 

Myers  v.  Farrell 417,  427 

Myers  v.  Foster 738 

Myers  v.  Gemmel 295,  296 

Myers  v.  Hewitt 663 

Myer  v.  Jacobs 274 

Myers  v.  Smith  83 

Myers  v,  Standart 625 

Myers  v.  United  States 692 

Myers  v.  York  &  Cumberland  R.  R.  .   688 
Myerstien  v.  Barber. . .  524,  526,  527,  528 

529 

Mygatt  V,  Wilcox 444 

Myles  V.  Myles 241,  251 


Nagel  V.  Mignot 

Nailor  v.  French 

Napier  v.  Bulwinkle 

Narragaugus  v.  Wentworth 

Nash  V.  Breeze 

Nash  V.  Drisco 

Nash  V.  Martin 

Nash  V.  Mosher 

Nash  V.  Russell 109, 

Nash  V.  Towne 117, 

Nashville  Bank  v,  Henderson 

Nathan  v.  Giles 489, 

National  Exchange  Bank  v.  Hartford, 

etc.,  R.  R.  Co 

National  Park  Bank  v.  Ninth   Nat, 

Bank 590, 

National  Bank  of  C,  in  New  York,  v. 

N.  M.  Bank  of  A.,  in  New  York. . . 

National  Bank  v.  Norton 

National    Bank     of     Metropolis     v. 

Sprange 482, 

National  Bank  of    Fort    Edward  v. 

Washington  County  Nat.  Bank . . . 


Nave  V.  Baird 

Nave  V.  Berry 

Navulshavv  v.  Brownrigg. 
Neal  V.  Keel's  Executors  . 

Neal  V.  Patten 

Neal  V.  Viney 

Nedvifiek  v.  Meyer 

Needles  v.  Needles 

Neff  V.  Webster 

Nehon  v.  Fotteral 

Neil  V.  Staten , 

Neille  v.  United  States  . . , 

Nelson  v.  Aldridge 

Nelson,  V.  Bostwick 

Nelson  v.  Cook 

Nelson  v.  Cowing 


222, 


165 

121 
295 
435 
398 
115 
641 
276 
392 
239 
513 
492 


600 

508 
592 

483 

511 
513 
470 
393 
179 
174 
219 
393 
189 
355 
143 
620 
455 
230 
478 
584 
442 
567 


Nelson  v.  Eaton 586 

Nelson  v.  Hall 707,  714 

Nelson  v.  Howard 3bl 

Nelson  v.  Hudson  River  R.  R.  Co., 

216,  222 

Nelson  v.  Kerr 254 

Nelson  v.  Suddarth ^ 671 

Nelson  v.  Woodruff 525 

Nelson  v.  Wyan    212 

Neabit  v.  Lockraan 466,  467 

Nettleton  v.  Billings 126 

Nevan  v.  Roup 274 

Neville  v.  Frost 386 

Newark  India  Rubber  Co.  v.  Bishop,  620 

Newberry  v.  Lee 448 

Newburgh  Turnp.  Co.  v.  Miller,  731,  738 

Newcomb  v.  Brackett 394 

Newcomb  v.  Cramer 580 

New  England  Marine  Ins.  Co.  v.  De- 
Wolf 287 

Newell  v.  Gregg 609 

Newell  V.  Hill , 380 

!t^ewell  V.  Newell 210 

Newell  V.  Wheeler 665 

New  Hampshire  Bank  v.  Calcord  ...  97 
New  Haven  Saw  Mill  Co.  v.  Fowler,  413 
New  Holland  Turnp.  Co.  v.  Lancaster 

Co 696 

Newhall  v.  Ireson 714 

Newhan  v.  Paige 92 

Newhall  v.  Wright 128 

Newill's  Case 211 

Newlin  v.  Beard 678 

Newman  v.  Bennett 342 

Newman  v.  Bradley 447 

Newman  v.  Newman 685,  700 

Newman  v.  Sylvester 261 

Newman  v.  Wilbourne 211 

New    Orleans,    etc.,    R.    R.    Co.    v. 

Allbritton 345 

New   Orleans,   etc.,    R.    R.    Co.    v. 

Statham 346 

Newsom  v.  Finch 92 

Newsom  v.  Thornton 527,  528 

Newton  v.  Bronson 21,  219 

Newton  v.  Eddy 711 

Newton  v.  Harland 60 

Newton  v.  McLean 154 

Newton  v.  Pope 306 

New  York  Exchange  Co.  v.  De  Wolf, 

105,  591 
New  York  and  Washington  Printing 

Tel.  Co.  V.  Dryburg 264 

New  York  Firemen  Ins.  Co.  v.  Ely  . .   129 

N.  Y.  State  Bank  v.  Fletcher 569 

N.   Y.    and   Virginia,   etc.,   Bank   v. 

Gibson 615,  619 

N.  Y.  and  H.R.R.  Co.  v.  Morrisania,  663 
New   York   Central  Ins.   Co.  v.  Na- 
tional Protection  Ins.  Co 247 

N.  Y.  and  Erie  R.  R.  Co.  v.  Skinner,  305 
New   York   Life   Ins.   Co.  v.  Super- 
visors of  New  York. 31 

Nexsen  v.  Lyell 572 

Neyland  v.  Neyland 396 

Niagara  Bank  v.  Fairman 625 


TABLE  OF  CASES. 


Ixxix 


PAGE. 

Nicliols  V.  Alsop 198 

Nichols  V.  Buckram 382 

Nicliols  V.  Dennis 444 

Nichols  V.  Diamond 564,  621,  622 

Nichols  V.  Douglass 681 

Nichols  V.  Goldsmith 638 

Nichols  V.  Moody 261 

NichoUs  V.  POol 626 

Nichols  V.  Valentine 424 

Nichols  V.  Weaver 725 

Nickerson  v.  Moran 191 

Nicholson  v.  Pelanne 192 

Nicto  V.  Clark 265 

Nield  V.  Smith 324 

Nightingale  v.  Withington 586 

Niles  V.  Patch 710 

Nimmo  v.    Davis 357 

Nimic  V.  Holmes 183 

Nisbet  V.  Lawson 252,  254 

Nisbet  V.  Smith 656,  657 

Nixou  V.  Palmer 220,  240 

Nixon  V.  Phelps 453 

Nobles  V.  Bates 674 

Noble  V.  Bank  of  Kentucky 457 

Noden  v.  Johnson 341 

Noe  V.  Christie 363 

Noel  V.  Murray 568 

Noel  V.  liobinson 169 

Nolan  V.  Jackson 442 

Nolle  V.  Thompson 427,  429 

Nolton  V.  Western  R.  R.  Co 136 

Noonan  v.  Bradley 121,  124 

Norris'  Appeal 720 

Norris  v.  Badger 597 

Norris  v.  Douglass 359 

Norris  v.  Durham 385,  393 

Norris  v.  Hero ;   241 

Norris  v.  Maitland 386 

Norris  v.  Taylor 250 

Norris  v.  Watson 425 

North  River  Bank  v.  Aymar 227 

North  V.  McDonald 417 

North  V.  Nichols 374,  386 

North  Penna.  R.  R.  v.  Adams 689 

Northern,  etc.,  Railway  Co.   v.    Bas- 

tian 229 

Northampton  Bank  v.  Allen 515 

Northrop  v.  Burrows 61,    62 

Northup  V.  Jackson 292 

Northrop  v.  Sumney 707 

Norton  v.  Beaver 669 

Norton  v.  Coons 184,  185 

Norton  v.  Ellam 640 

Norton  v.  Kidder 101 

Norton  v.  jMarden 85 

Norton  v.  Pickering 628 

Norton  v.  Syms 700 

Norton  v.  Tuttle 361 

Norton  v.  Warner 203 

Norway   Plains   Co.   v.    Boston    and 

Maiue  R.  R 7,  250 

Norway  v.  Rowe 660 

Norwich  v.  Commissioners 731 

Nostrand  v.  Durland 716 

Noyes  V.  Brown 363 

Noyes  v.  Clark 168 


PAGE. 

Noyes  v.  Loring 258 

Noyes  v.  Nichols 123 

Noyes   v.  Shepherd 142 

N  ues  V.     Ward 345 

Nudd  V.  Hobbs 710 

N  unez  v.  Dautel 885 

Nunn  V.  Goodlett 684 

Nunuemaker  v.  Lanier 251,  624 

Nuttall  v.  Brannin    177 

Nye  v.  Mosely 674 

Oakes  v.  School  District 493 

Oakes  v.  Spaulding 315 

Oakley  v.  Aspinwall 51 

Oakley  v.  Boorman 93,  94 

O'Barr  v.  Alexander 241,  445 

Obier  v.  Neal 338 

O'Brien  v.  Creig 663.  666 

O'Brien  v.  Gilchrist 521,  523,  580 

O'Brien  v.  Norris 434 

O'Brien  v.  Shiel 205 

Occum  Co.  V.  Sprauge  Manufacturing 

Co ^ 86 

O'Conley  v.  Natchez. 407 

Oddie  V.  National  City  Bank  of   New 

York 503 

O'Donnell  v.  Smith 543 

Oelricks  v.  Ford 139,  259 

Offley  v.  Warde 279 

Ogden  V.  Astor 197 

•Ogden  V.  Dobbin 638 

Ogden  V.  Hughes 455 

Ogden  V.  Saunders 74 

Ogdensburgh,  Rome   &  Clayton  Rail- 
road Co.  V.  Frost 381 

Oglesby  v .  Yglesias 259 

O'Gradyv.  Julian 429 

O'Hara  v.  Brophy 460 

O'Hara  v.  King 340 

Ohio  &  Mississippi   Railroad  Co.  v. 

Kasson 158 

Ohio  Canal  Co.  v.  Knapp 383 

Ohrloflf  V.  Briscall 525 

Oil  Co.  V.   Adams 175 

Olcott  V.  Tioga  Railroad  Co 121,  219 

Oldham  v.  Sparks •. 460 

Olive  V.  Aliter 685 

Oliver  v.  Palmer 188 

Oliver  V.  Pate 468 

Oliver  v.  Sterling 224 

Oliver  v.  Wilson 416 

Oiler  v.  Bonebrake 209 

Olmstead  v.  Niles 357 

Olmstead  v.  Wiustead  Bank 512 

Olney  v.  Wickes 363 

Omohundro  V.  Omohundro 681,  696 

O'Neale  v.  Lodge 380 

Onion  v.  Paul 363 

Ontario  Bank  v.  Mumford 369 

Oothout  V.  Ballard 41,  641 

Oppenheimer  v.  Walker 352,  353 

Orcutt  v.  Kittery   Point  Bridge   Co. 

734,  785 

Ord  v.  Noel 484 

Ordineal  v.  Barry 91,  92 

Oregon  Iron  Company  v.  Trullinger. .  296 


Ixxx 


TABLE  OF  CASES. 


O'Riley  V.  McCliesney 40 

Grmrod  v.  Huth 140 

Orruond  v.  Hutcbinson 179 

Orr  V.  Hadley 718 

OiT  V.  lvalues 169 

Orton  V.  Smith G53 

Osbaldiaton  v.  Simpson 700 

Osboru  V.  Bank  of  United  States  219,  457 

Osborn  v.  Bell 388,  409 

Osborn  v.  Gillett 8,  141 

Osborn  v.  Kerr 261 

Osborn  v.  Moncure 641 

Osborne  v.  Rogers 375 

Osgood  V.  Breed 205,  206, 207,  212 

Osgood  V.  Franklin 171 

Osgood  V.  Pearson 539 

Osincup  V.  Nichols 319 

Oswego  Bank  v.  Knower . .  635 

Otis  V.  Blake 698 

Otis  V.  Hussey 635 

Outcalt  V .  Van  Winkle 356 

Outwater  v.  Dodge  ...    385 

Overman  v.  May 708 

Overton  v.  Hudson * 384 

Owen  V.  Boerum 193 

Owen  V.  Brockschmidt 222 

Owen  V.  Paul 164 

Owen  V .  Von  Uster 622 

Owings  V.  Hull 230 

Owings  V.  Jones 142 

Oxenham  v.  Esdaile 273 

Oystead  v.  Shed 425 

Packard  v.  Hill 117 

Paddock  v.  Colby 464 

Paddock  v.  Robinson 725 

Page  V.  Babbit 389 

Page  V.  Danforth 98 

Page  V.  Page 208 

Page  V.  Trufant 673,  699 

Paice  V.  Walker 259 

Paige  V.  Stone 223 

Paine  v.  France 154 

Paine  v.  First  Division,  etc.,  Railroad 

Co 666 

Palen  v.  Starr 459 

Palin  V.  Steward 148 

Palmer  v.  Anderson 719,  720 

Palmer  v.  Crook 201 

Palmer  v.  De  Witt 359 

Palmer  v.  Dougherty 709 

Palmer  v.  Fletcher 292,  294 

Palmer  v.  Hatch 222 

Palmer  v.  Hicks 710 

Palmer  v.  Holland 244,  251 

Palmer  v.  North 96 

Palmer  v.  Stephens 554 

Palmer  v.  Warren  Insurance  Co 124 

Palmer  v.  Wetmore 296 

Pancake  v.  Harris 412 

Paradine  v.  Jane 171,  383 

Parrisli  v.  Brooks 366 

Parish  v.  Gates 471 

Parish  v.  Stone 90,  107 

Park  Bank  v.  Watson 611 

Parke  v.  Lowrie 241,  243 


PAGE. 

Parks  V.  Parks 209 

Parker  v.  Carson 682 

Parker  v.  Carter 468 

Parker  v.  Clarkson 380 

Parker  v.  Downing 436 

Parker  v.  Flora 673,  701 

Parker  v.  Foote 145,  295,  296 

Parker  v.  Gordon 620,  625 

Parker  v.  Jones 490 

Parker  v.  Kelley 364 

Parker  v.  McClure 209 

Parker  v.  Mise 298,  303 

Parker  v.  Porter 426 

Parker  v.  Scott 411 

Parker  v.  Smith , 290 

Parker  v.  Vose 246 

Parkins  v.  Scott 39 

Parrott  v.  City  of  Lawrence 731  - 

Parsons  v.  Brown 55,  339 

Parsons  v.  Webb 273 

Parsons  v.  Winslow 826 

Partenheimer  v.  Van  Order 318 

Partlow  V.  Haggerty 313 

Partridge  v.  Gilbert 144 

Partridge  v.  Havens 208,  209' 

Partridge  v.  Scott 144 

Pascalis  v.  Canfield 350 

Pasley  v.  Freeman 140 

Pasmore  v.  North 556 

Pasteur  v.  Parker 396 

Patchin  v.  Swift 90 

Pate  V.  Gray 364 

Patience  V.  Townley 631 

Patrick  v.  Colerick 59 

Patrick  v.  Grant 121 

Patten  v.  Merchants   and    Farmers' 

Mutual  Fire  Ins.  Co 232 

Patten  v.  Moor 470 

Patterson  v.  Crawford 407 

Patterson  v.  McCainant 650 

Patterson  v.  Prior 407 

Patterson  v.  Salmon 700 

Pattisson  v.  Gilford 654 

Pattisou  V.  Hull 365 

Patty  V.  Pevise 186 

Paul  V.  Frazier 728 

Paul  V.  Parsbail 9 

Paul  V.  Purcell 433,  475 

Pauling  V.  United  States 680 

Pawlet  V.  Sandgate 377 

Paxton  V.  Boyer 337,  338 

Paxton  V.  Popham 699 

Paxton  V.  Steckel   468 

Payne  v.  Avery 466 

Payne  v.  Cave 485 

Payne  v.  Gardiner 254 

Payne  v.  Ladue 609 

Payne  v.  Potter  227 

Peabody  v.  Rees 609 

Peach  V.  Mills 190 

Peacock  v.  Rhodes 595 

Peacock  v.  Wildes 421 

Peak  v.  Hayden 657 

Pearce  v.  Brooks 43 

Pearl  v.  Nashville 175 

Pease  v.  Lawson 675 


TABLE  OF  CASES. 


Ixxxi 


PAGE. 

Pease  v.  Pease 175 

Pearsall  v.  Dwight 129 

Pearsall  v.  Summersett 680 

Pearson  v.  Duckham 185 

Pearson  v.  Talbot 359 

Perk  V.  Ellis 183 

Peck  V.  Hibbard 130 

Peck  V.  Mayo 130 

Peck  V.  Smitli 708 

Peck  V.  Williams 471 

Peck  ham  v.  Gilman 596 

Peckham  v.  Haddock 119,  121 

Peckbam  v.  Henderson 62 

Peckbam  v.  North  Parish,  etc 421 

Peeters  v.  Opie 382 

Peebles  v.  Stevens 701 

Pelham  v.  Grigg 673 

Pemigewasset  Bank  v.  Brackett 400 

Pendleton  v.  Bank  of  Kentucky 520 

Pendleton  v.  Perkins 659 

Penhallow  v.  Dwight 425 

Penn.  Coal  Co.  v.  Delaware,  etc.,  Co.,  738 

Pennell  v.  Alexander 528 

Pennington  v.  The  Governor 167 

Pennington  v.  Yell 459 

Penny  v.  Martin 172 

Pennsylvania  Coal  Co.  v.  Delaware  & 

Hudson  Canal  Co    117 

Pennsylvania,  etc.,  Canal  Co.  v.  Gra- 
ham   345 

Pennsvlvania    v.      Wheeling,     etc., 

Bridge  Co 730 

Pennock's  Appeal 482 

Penobscott  v.  Dunn 381 

Penton  v.  Murdock 307,  318 

Pentz  V.  Stanton 257,  285 

Pentz  v.  Winterbottom 597 

Peoria  v.  Johnson 175 

People's  Bank  v.  Adams         393 

People  V.  Bartlett 703 

People  V.  Benjamin 471 

People  V.  Bostwick 567 

People  V.  Bradt 449 

People  V.  Brotherson 461 

People  V.  Brown 102,  262 

People  V.  Buster 662 

People  V.  Cooper 732 

People  V.  Dubois 514 

People  V.  Dutchess  &  Columbia  R.  R. 

Co   732 

People  V.  Gosper 117 

People  V.  Hillsdale,  etc.,  Turnp.  Co.,  732 

People  V.  Humphrey 199 

People  V.  Jenkins 690 

People  V.  Justices,  etc     475 

People  V.  Kenyon 725 

People  V.  Lamborn 439 

People  V.  Love 682 

People  V.  Mariposa  Co 457 

People  v.  Mayor,  etc.,  of  New  York . .  440 

People  V.  Mercein 699 

People  V.  Nevins 430,  455 

People  V.  Saxton 127 

People  V.  Sturtevant 45 

Poople  V.  Supervisors  of  Albany  ....  453 
People  V.  Supervisors  of  Dutchess. . .  732 
E 


PAGE. 

People  V.  Tioga  C.  P 360 

People  V.  Tubbs 703 

People  V.  Turner 475 

People  V.  Utica  Ins.  Co 498 

People  V.  W^iuters 342 

People  V.  Yslas 332 

People  ex  rel.  Martin  v.  Brown 253 

People  ex  rel.  Barlow  v.  Canal  Board,  144 
People  ex  I'el.  Kearney  v.  Carter  ...  60 
People  ex  rel.   Sanders  v.   Colborne,     11 

People  ex  rel.  Cooper  v.  Fields 60 

People  ex  rel.  Mclnroy  v.'  Reed 60 

People  ex  rel.    Gault   v.   Van   Nos- 

trand 60 

Pequawkett  v.  Mathes 676,  677,  680 

Perkins  v.  Barstow 596 

Perkins  v.  Boardman 277 

Perkins  v.  Cummings 106 

Perkins  v.  Franklin  Bank 129 

Perkins  v.  Hart 193,  386 

Perkins  v.  Heesey 722,  728 

Perkins  v.  Mayfield 93 

Perkins  v.  Lyman 696 

Perkins  v.  Norvell 411 

Perkins  v.  Stebbins 235 

Perley  v.  Chandler 708,  732 

Per  Lee  v.  Ouderdonk 602 

Perminter  v.  Kelley 265 

Perminter  v.  McDaniel 678 

Pernam  v.  Weed 714 

Perot  v.  Levasseur 365 

Perrotin  v.  Cuculla 223 

Perreira  v.  Jopp 560 

Perrine  v.  Chesapeake,   etc.,  Co 738 

Perrine  \\  Evans 419 

Perrine  v.  Lyman 261 

Peru  Steel,  etc.,  Co.  v.  Whipple  File, 

etc.,  Co 437 

Perry  v.  Botsford 403 

Perry  v.  Fitzhowe 62 

Perry  v.  Patterson 679 

Perry  v.  Pliipps 303 

Perry  v.  Pratt 720 

Perry  v.  Roberts 365 

Perry  v.  State 474 

Peter  v.  Butler 413 

Pettit  V.  Mercer 426,  427 

Pettit  V.  Shepherd 663,  669 

Petit  V.  Smith 155 

Pettibone  v.  Simpson 39 

Pettingill  v.  Porter 710 

Peto  V.  Reynolds 565 

Petriken  v.  Baldy 398 

Pfeiffer  v.  Adler 95 

Pfoutz  v.  Comford 419 

Pilaris  V.  Leachman  277 

Phelan  v.  Boylan 660 

Phelan  v.  Gardner 270 

Phelan  v.  Moss 279,  615 

Phelps  V.  Call 673 

Phelps  V.  Hunt   451 

Phelps  V.  Paris 310 

Phelps  V.  Vischer 603 

Philadelphia,  etc.  R.  R.  Co.  v.  Barnard,  537 
Philadelphia  &  Reading  R.  R.  Co.  v. 

Derby 287 


Ixxxii 


TABLE  OF  CASES. 


Philadelphia  v.  Lockhart 231 

Philadelphia,  etc.,  11.  R  Co.  v.  Wea- 
ver  328.  230 

Phillips  V.  Alleu 187 

Philips  V.  Belden 195,  197 

Phillips  V.  Berger 94 

Phillips  Limerick  Academy  v.  Davis,  105 

Phillips  V.  Hudson 5C0,  649,  «52 

Phillips  V.  Kelly 346 

Phillips  V.  McLaughlin 211 

Phillips  V.  Overton 466 

Phillips  V.  Potter 702 

Phillips  V.  Rhodes 710 

Phillips  V.  Rogers 153 

Phillips  V.  Wooster 146 

Phipps  V.  Annesley 655 

Phipps  V.  Millbury  Ba,v\,ls. 518 

Philpott  V.  Bryant 636 

Phinuey  v.  Baldwin 130 

Phcenix  Ins.  Co.  v.  Allen 619 

Piatt  V.  St.  (Jlair 352 

Pickard  v.  Sears 231 

Pickett  V.  Bates 435 

Pickering  v.  Demerritt 272 

Pickering  v.  Orange 812 

Pickering  v.  Pickering 214 

Pico  V.  Columbet 180 

Pidgeon  v.  Williams ; .  435,  445 

Pierce  v.  Butler 499 

Pierre  v.  Fernald 296 

Pierce  v.  Hicks 340 

Pierce  v.  Hosmer 308 

Pierce  v.  Jackson 423 

Pierce  v.  Kittridge 622 

Pierce  v.  Lacy 386 

Pierson  v.  Post 301 

Pierce  v.  Richardson 673 

Pierce  v.  Smith 412 

Pierce  v.  Strickland. 438 

Pierce  v.  Struthers 620 

Pierse  v.  Thornton 461 

Pierce  v.  United  States 263 

Pierson  v.  Hutchinson 165 

Pierson  v.  Mosher 718 

Pierson  v.  Wallace 511 

Piercv  v.  Piercy 687,  705 

Pike  V.  Balch   485 

Pike  V.  Bright 406 

Pike  V.  Emerson 440 

Pike  V.  Munroe 124 

Pillow  V.  Bushnell 36,  146,  344 

Pillsbury  v.  Pillsbury 381 

Pinckney  v.  Hagadorn 237,  477 

Pindar  v.  Morris 454 

Pindar  v.  Upton 687 

Pinkerton  v.  Bailey 593,  608 

Pinkerton  v.  Woodward 343 

Pinkham  v.  Gear 84 

Pinkston  v.  Taliaferro 184 

Pinney  v.  Hershfield 427 

Pintard  v.  Tackington 602,  604,  005 

Pippin  v.  Sheppard ....   136 

Piscataqua  Bridge  Co.  v.  N.  H.  Bridge 

Co 730,731,  734 

Pitcher  v.  Barrows 540 

Pitkin  v.  Noyes 96 


PAGE. 

Pitman  v.  Albany 720 

Pitt  V.  Davison 443 

Pitt  V.   Gentle 105 

Pitts  V.  Beckett 113 

Pitts   V.  Burroughs 415 

Pitts  V.  Congden 602 

Pittsburgh,  etc.,  Railroad  v.  Guzzam  233 
Pittsburg,  etc.,  Railroad  Co,  v.  Slus- 

ser 265 

Pixley  V.  Huggins 669 

Place  V.  Greeuman 248,  271 

Plant  V.  Si»ythe 422 

Planters'  Bank  v.  Farmers*,  etc.,  Bank  500 

Piatt  V.  Beebe 591 

Piatt  V.  Potts 150 

Plato  V.  Reynolds 619 

Pleasants  v.  Kortrecht 455 

Plets  V.  Johnson 540,  541 

Plimly  V.  Westley 599 

Plumb  V.  Woodmanse 428 

Poage  V.  Wilson 188 

Pointer  v.  Smith 255 

Pole  V.  Harroi^in 699 

Polhil  V.  Walter 139,  564,  621 

Polk  V.  Pendleton 666 

Polk  V.  Plummer 690 

Polk  V.  Reynolds 663 

Polk  V.  Rose 657 

Pollard  V.  Rowland 266,  464 

Pollard  V.  Somerset  Mutual  Fire  Insur- 
ance Co 371 

Pollock  V.  Stables 229 

Pomroy  v.  Ainsworth 130 

Pond  V.  Skidmore 425 

Pool  V.  Boston 100 

Poole  V.  Gist 435,  465 

Pool  V.  Pratt 102,  727 

Pooley  V.  Ray 169 

Pope   V.  Barrett 252,  403 

Pope  V.  Chafee 486 

Pope  V.   Nickerson 130 

Popplewell  V.  Pierce 312 

Porce  V.  Bonneval 478 

Pordage  v.  Cole.    382 

Porter  v.  Androscoggin, etc.,  Railroad 

Co 387 

Porter  v.  Bullard 362,  363 

Porter  v.  Hadenpuyle 635 

Porter  v.  Hildebrand 413 

Porter  v.  Loback 194 

Porter  v.  Parks 277 

Porter  v.  Parmly 451 

Porter  v.  Payne 223 

Porter  v.  Porter 207,  558 

Porter  v .  Sidvers 271 

Porter  v.  Spencer 179 

Porter  v.  Talcott 285 

Porter  v.  Turner 169 

Portsmouth  v.  Donaldson 173 

Portland  Bank  v.  Stubbs 531 

Posey  V.  Decatur  Bank 165 

Post  V.  Kiniberly 179 

Post  V.  Mackall 353 

Postmaster-General  v.  Early 692 

Postmaster-General  v.  Rice 692 

Postmaster-General  v.  Norvell 693 


TABLE  OF  CASES. 


Ixxxiii 


PAGE. 

Poston  V.  Jones 182 

Potter  V.  Earnest 596 

Potter  V.  Gardner 328,  330 

Potter  V.    Hall 426 

Potter  V.  Mayo 454 

Potter  V.  Parsons    436 

Potter  V.  Sewall 93 

Potter  v.  Titcomb 692 

Potter  V.  Ware 447 

Potts  V.  Whitehead 86,    87 

Poultney  v.  Treasurer  of  State 489 

Powell  V.  Brown 92 

Powel  V.  Buckley 384 

Powell  V.  Edmonds 477,  488 

Powell  V.  Graham 588 

Powell  V.  Powell 337 

Powell  V.  Powis 651 

Powell  V.  Reese 409 

Powell  V.    Sims 296,  297 

Powell  V.  Spaulding 459 

Powell  V.  Trustees^of  Newbury,  272,  487 

Power  V.  Kent 465 

Powers   V.  Kindt 319 

Powers  V.  Mitchell 250 

PoNTOrs  V.  Wheatly 728 

Prall   V.  Hinchmau 611 

Prather  v.  Harlan 679 

Prather  v.  State  Bank 284 

Pratt   V.  Adams 462,  567 

Pratt  V.  Clemens 154 

Pratt  V.  Gardner 147 

Pratt  V.  Langdon 115 

Pratt  V.  Petrie 303 

Pratt  V.    Pond 664 

Pratt  V.  Putnam 436 

Prescott  V.  EUingwood 363 

Prescott  V.  Hull 362 

Presbury  v.  Fisher 685 

Prentiss  v.  Bliss '. 423 

Prentiss  v.  Faruham 100 

President,  etc.,  v.  Trenton  Bridge  Co.,  730 

Preston  v.  Bowmar 714,   715 

Preston  v.  Hull 218,  678 

Preston  v.  Preston 450 

Prewitt  V.  Carmichael 413 

Price  V.  Durin 486 

Price  V.  Easton 375 

Price  V.  Grand  Rapids,  etc.,  Railroad 

Co 448 

Price  V.  Neal 508,  600 

Price  V.  Summers 674 

Priester  v.  Augley 266 

Primm  v.  Raboteau 651,  718,  721 

Primm  V.  Stewart 291 

Primm  v.  Walker 716 

Prince  v.  Smith '. 190 

Princeton,   etc..   Turnpike  v.  Gulick,  394 

Proctor  V.  Keith 110 

Proctor  V.  Newhall 206 

Promley  v.  Wallace 201 

Proprietors,  etc.,  v.  Hoboken  Land  Co.,  729 
Proprietors,  etc.,  v.  Machias  Hotel  Co.,  717 

Proprietors  v.  Taylor 386 

Prosser  v.  Edmonds 361 

Prosser  v.  Henderson 88 

Previa  v.  Cheves 423 


PAGE. 

Puckford  V.  Maxwell 572 

Pugsley  V.  Murray 247 

Pulliam  V.  Booth  '. 194 

Pullman  v.  Corning 386 

Pulteney  v.  Warren 25,  187 

Pulver  V.  Harris 455 

Purchase  v.  Mattisou 507,  612 

Purdy  V.  Doyle 350,  351 

Purdy  V.  Phillips 681 

Purdy  y.  Venuilya 398 

Purkiss  V.  Benson 717 

Purple  y.  Hudson,  etc 369 

Pursell  V.  Horn 335 

Purviance  y.  Holt 167 

Putnam  y.  Crymes 542 

Putnam  y.  Lewis 571,  572 

Putnam  v.  Payne 320 

Putnam  y.  Russell 353 

Putnam  y.  Schuyler 600 

Putnam  v.  Tillotsou 522 

Putnam  y.  Van  Buren 444 

Puttock  y.  Warr 283 

Pyer  y.  Carter 294 

Quackenbush  v.  Ehle 269 

Quackenbush  v.  Leonard 180 

Quarrell  y.  Beckford 660 

Quarles  y.  George 102 

Quarles  y.  Porter 439 

Quebec  Bank  of  Toronto  v.  Weygand,  517 

Quiucy  Canal  v,  Newoomb 380 

Quinn  y.  Lloyd 18,  441 

Quint  V.  Ophir.  etc.,  Mining  Co 451 

Raborg  y.  Bank  of  Columbia 499 

RadclifiPs   Ex'rs    v.    Mayor,    etc.,  of 

Brooklyn 143 

Radcliffe  y.  Rowley 663 

Rae  y.  Mayor,  etc.,  of  New  York  ....  666 

Raiganel  y.  AylifiF 401 

Raily.  Potts 148 

Railroad  Company  y.  Jones 734 

Railroad  Company  y.  Schurmeir  ....  711 
Railroad  Company  y.  Trimble  ......  118 

Railway  Co.  y.  Barker 328 

Rainey  y.  Long 401 

Raintan  y.  Hajding 365 

Ralston  y.  Bullits 629 

Rambo  v.  Metz 540 

Ramsay  y.  Gardner 271 

Ramsay  v.  Geryais ' 693 

Ramsey  y.  Warner 178 

Ramuz  v.  Crowe 639 

Rand  y.  Griffith 394 

Rand  y.  Webber 388 

Randall  y.  Rrigham 147 

Randall  y.  Harvey 221 

Randall  y.  Howard 369 

Randall  y.  Smith 645 

Randall  y.  Snyder 239 

Randall  y.  Van  Vechten 261 

Randel  y.  Ely 194,  197 

Randel  y.  Yates 469,  470 

Raudlet  y.  Herren 569 

Randolph  y.  Kinney 652,  654 

Randolph  v.  Randolph 188 


Ixxxiv 


TABLE  OF  CASES. 


PAGE. 

Raney  v.  Weed 141 

Raney  v.  Wood 228 

Rankin  v.  Matthews 477 

Rann  v.  Hughes 373,  374 

Rnnson  v. Jones  302 

Ransom  v.  Keyes 183 

Ransom  v.  Mack 632,  633 

Ransom  v.  N.  Y.  and  Erie  R.  R.  Co. .   345 

Raphael  v.  Bank  of  England 614 

Rapho  V.  Moore 734 

Rascorla  v.  Thomas 110 

Raspillier  v.  Brownson 427 

Ratcliff  V.  Baird 464 

Ratclifte  v.  Cary 718 

Ratcliff  V.  Planters'  Bank 620 

Ratcliff  V.  Wales 199,  202 

Rathbone  v.  Budlong 256 

Rathbone  v.  Warren 175 

Rathbun  v.  Ingals 254,  461 

Rawls  V.  Deshler 521 

Rawlinson  v.  Stone 587 

Rawson  v.  Copeland 392 

Rawson  v.  Curtiss 219 

Rawson  v.  Johnson 395 

Ray  V.  Bank 266 

Ray  V.  Lynes 295 

Raymond  v.  Baar 573 

Raymond  v.  Bearnard 383 

Raymond  v.  Merchant 570 

Rayne  v.  Taylor 419 

Raynor  v.  Grote 280 

Rayner  v.  Pearsall 188 

Raynor  v.  Timerson 715 

Rea  V.  Lewis 429 

Rea  V.  Tucker 300,  203 

Read  v.  Coker 333 

Read  v.  Edwards 313 

Read  v.  French 97,  440,  441 

Reading  R.  R.  v.  Johnson 104 

Ready  v.  Bragg 215 

Ready  v.  Stewart 415 

Real  V.  People 51 

Reapers'  Bank  v.  Willard 513, '514 

Re  Bradwell 431 

Rechtscherd  v.  Accommodation  Bank 

of  St.  Louis 242 

Rector,   etc.,    of  Trinity    Church    v. 

Higgins 686 

Redfield  v.  Davis 240 

Redhcimer  v.  Pyson 328,  330 

Redlich  v.  Doll 286,  ti57 

Redman  v.  Deputy 92 

Redman  v.  State 474 

Re  De  Visme 209 

Reece  v.  Rigley 459 

Reed  v.  Clark :  727 

Reed  v.  Colcock ■  447 

Reed  v.  Drake 676 

Reed  v.  Latham 237 

Reed  v.  McCourt 680,  719,  720 

Reed  v.  Murphy 563 

Reed  v.  Rann 270 

Reed  v.  Rourk 554 

Reed  v.  Ward    182 

Reedie  v.  London  &  North  Western 

R.  R.  Co 18 


Rees  V.  Berrington 657 

Reese  v.  Hendricks 674 

Reese  v.  Medlock 225 

Reeve  v.  Peck 626 

Reeves  v.  State  Bank  of  Ohio 251 

Reg.  v.  Betts 730 

Reg.  V.  Cotesworth 335 

Reg.  V.  Derbyshire   729 

Reg.  V.  Martin   332 

Reg.  V.  Southampton 731 

Reg.  V.  Spickle 299 

Reg.  V.  Trustees,  etc 732 

Reilly  v.  Cavanaugh 460 

Relph  V.  Gist 675 

Rembert  v.  Brown 196,  197 

Remsen  v.  Graves 600 

Renaker  v,  Lafferty 208 

Renard  v.  Turner 283 

Renner  v.  Bank  of  Columbia. .  .*  129,  500 

Ren  wick  v.  Morris 730 

Republica  v.  De  Longchamps 335 

Requa  v.  Collins 630 

Requea  V.  City  of  Rochester...  731,  733 

Re  Smith 475 

Respublica  v.  Fisher 455 

Rew  v.  Barber 568 

Rex  V.  Brooks 299 

Rex  V.  Chelsea  Water-works 736 

Rex  V.  Devon 730 

Rex  V.  Greenwood 475 

Rex  V.  Inhabitants  of  Yorkshire,  729,  731 

Rex  V.  Jackson 333 

Rex  V.  Kent 736 

Rex  V.  Nichol 833 

Rex  V.  Northampton 729 

Rex  V.  Payham 39 

Rex  V.  Rosinski 333 

Rex  V.  Salop 731 

Rex  V.  Taylor 476 

Rex  V.  W.  R.,  of  Yorkshire 731 

Rexford  v.  Knight 145 

Rexford  v.  Rexford 155 

Reybold  v.  Henry 384 

Reynolds  v.  Dechaums 483 

Reynolds  v.  Doyle 610 

Rhett  V.  Poe 628 

Rhines  v.  Evans 459,  460 

Rhodes  v.  Chesson 115 

Rhode  V.  Louthain 677 

Rice  V.  Austin 276 

Rice  V.  Beers 414 

Rice  V.  Chase 429 

Rice  V.  Churchill 119,  559,  580 

Rice  V.  Dwight  Manuf.  Co Ill 

Rice  V.  Gove 238 

Rice  V.  Harbeson 353 

Rice  V.  O'Keefe 439 

Rice  V.  Peet 671 

Rice  V.  Stearns 594,  595 

Rice  V.  Wilkins 434 

Rice  V.  Worcester 709 

Rich  V.  Austin 179 

Rich  V.  Doane 664 

Richards  v.  Doe 525 

Richards  v.  Richards 540 

Richards  v.  Warring 597 


TABLE  OF  CASES. 


Ixxxv 


PAGE. 

Richardson  v,  Boynton 676,  677 

Richardson  v,  Chickering 719 

Richardson  v.  Comstock 563 

Richardson  v.  Ellet 555 

Richardson  v.  FutreL 245 

Richardson  v.  Kimball 264,  265 

Richardson  v.  Lincoln 598 

Richardson  v.  Talbot 444 

Richardson  v.  Williams 104,  108 

Richardson  v.  Williamson 258 

Richels  v.  State 332 

Richer  v.  Freeman 147 

Richetts  v.  Pendleton 557 

Richmond  v.  Vanhook   211 

Richmond  v.  Woodward 682 

Richter  v.  Selin 556 

Ricker  v.  Fairbanks 117 

Ricketts  v.  Gurney 456 

Riddles  v.  Aikin 471 

Riddle  v.  Brown 339 

Riddle's  Estate 207 

Riddle  v.  Maudeville 169 

Riddle  v.  Proprietors  of  Locks,  etc. .  736 

Ridgley  v.  Craudall    382 

Rigge  V.  Burbridge 377 

Rigg  V.  Curgenven 199 

Riggs  V.  Waldo 597 

Riker  v.  Kidder 209 

Riley  v.  Gritfin 714 

Riley  v.  Minor 219 

Riley  v.  Vanhouten 119,  121 

Rindge  v.  Baker 184 

Ringo  V.  Binns 246,  250 

Rings  V.  Gibbs 684 

Ripsher  v.  Shane 404 

Riserwick  v.  Davis 420 

Risley  v.  Fellows 444 

Risley  v.  Smith 363 

Ritchie  v.  Borland 653 

Ritch  V.  Hawes 305,  306 

Ritenour  v.  Mathews 109 

Ritter  v.  Phillips 97 

River  Clyde  Trustees  v.  Duncan  ....  283 

Rivenburgh  v.  Rivenburgh 202 

Robards  v.  Wortham 353 

Roberts  v.  Fisher 85 

Roberts  v.  Jackson 270 

Roberts  v.  Mason 346 

Roberts  v.  Peake 549 

Roberts  v.  Rose 62 

Roberts  v.  Thompson 572 

Roberts  v.  Totteu : 196 

Robertson  v.  Cloud 290 

Robertson  v.  Finley 073 

Robertson  v.  French 116 

Robertson  v.  Kensington 598 

Robertson  v.  Lynch 37Q 

Robertson  v.  Pope 237 

Robbins  v.  Alley 419 

Robbins  v.  Barnes 294 

Robbins  v.  Bridge 450 

Robbins  v.  Gorham 45,  147 

Robbins  v,  Otis 402 

Robbins  v.  Pinckhard 635 

Robison  v.  Beall 514 

Robinson  v.  Ames 619,  628 


PAGE. 

Robinson  v.  Bank  of  Darien 514 

Robinson  v.  Baker 275 

Robinson  v.  Bealle 207 

Robinson  v.  Chamberlin 739 

Robinson  v.  Chapline 234 

Robinson  v.  Dauchy 447 

Robinson  v.  Fiske 122 

Robinson  v.  Heard 694 

Robinson  v.  Holt 372 

Robinson  v.  Hlinois,  etc.,  R.  R.  Co  . . .  241 

253 
Robinson  v.  International   Life  Ass. 

Co  .... , 215 

Robinson  v.  Lo water 328,  330 

Robinson  v.  Mauldin 357 

Robinson  v.  N.  Y.  Ins.  Co 487 

Robinson  v.  Raynor 269 

Robinson  v.  Reynolds 608 

Robinson  v.  Rutter 488 

Robinson  v.  Threadgill 101 

Robinson  v.  Towns 365 

Robinson  v.  Townsend 324 

Robinson  v.  Tyson 395 

Robinson  v.  Williams 363 

Robinson  v.  Windham 401 

Rochdale  Canal  Co.  v.  King 148 

Rochester  City  Bank  v.  Elwood 690 

Rochester  City  Bank  v.  Suydam 470 

Rochester  v.  Tavlor 611 

Rockfeller  v.  Donnelly 693 

Rockwell  V.  Nearing 63 

Rockwell  V.  State 514 

Rockwood  V.  Nelson 143 

Rock  River  Bank  v.  Sherwood 515 

Rodgers  v.  Love 395 

Rodger  v.  The  Comptoir  D'Escompte 

de  Paris 630 

Rodick  V.  Gandell 363 

Rogers  v.  Bailey 189 

Rogers  v.  Bradshaw 736 

Rogers  v.  Dare 469 

Rogers  v.  Eagle  Fire  Ins.  Co 120 

Rogers  v.  Gosnell 390 

Rogers  v.  Greenwood 440 

Rogers  v.  Hosack 687 

Rogers  v.  Kneeland 487 

Rogers  v.  K.  &  P.  R.  R.  Co 730 

Rogers  v.  Mechanics'  Ins.  Co 129 

Rogers  v.  Morton 581 

Rogers  v.  Rogers 61,     62 

Rogers  v.  Smith ! 123 

Roget  V.  Merritt 571 

Rohan  v.  Hanson 177 

Rolfe  V.  Delmar 43 

Rolker  v.  Great  Western  Insurance 

Co 117 

Rolin  V.  Steward 505 

Rollins  V.  Phelps 218 

Rollinson  v.  Hope 363 

Rolt  V.  Watson 605 

Rood  V.  Jones 97 

Rood  V.  New  York  &  Erie  R.  R.  Co.,  145 

Roraback  v.  Stebbins 231 

Rose  V.  Bryant 705 

Rose  V.  McLeod 686 

Rose  V.  Mynatt 466 


Ixxxvi 


TABLE  OF  CASES. 


Rose  V.  Roberts 118,  123 

Roseboom  v.  Bellington 704 

Eoss  V.  Bedell 610,  611 

Ross  V.  Clark 417,  425 

Ross  V.  Curtiss 101,  253,  262 

Ross  V.  Houston 232 

Ross  V.  Young 666 

Rossiter  v.  Rossiter 226 

Rossell  V.  Cottom 308 

Roswell  V.  Pryer 294 

Rotli  V.  Palmer 405,  406 

Rothwell  V.  Roth  well 660 

Rounds  V.  Dalaware,  etc.,  R.  R.  Co.,  344 

Rounds  V.  Smith 508 

Rouquette  v.  Overmann 594 

Rourke  v.  Duffy 94 

Routledge  v.  Grant 103 

Rowe  V.  Beckett 369 

Rowe  V.  Stevens 247 

Rowe  V.  Tipper 646 

Rowe  V.  Ware 218 

Rowe  V.  Young  625 

Rowe  V.  Yuba  County 453 

Rowell  V.Klein '. 214 

Rowland  v.  Burton 190,  191 

Rowland  v.  State 436,  439 

Rowley  v.  Ball 166,  602,  639 

Rowley  v.  Bigelow 523,  524,  528 

Royal  British  Bank  v.  Turquand. .  .  .  699 
Royalton  v.  Royalton  &  Woodstock 

Turnpike  Co 120,  392 

Royalton  v.  Turnpike  Co 404 

Rubens  v.  Prindle 168 

Rucker  v.  Hiller 628 

Rucker  v.  Wadlington 588 

Ruckman  v.  Allwood 435 

Rudder  v.  Price 374 

Ruff  v.  Bull G94 

Ruff  V.  Webb 550 

Rutfin  V.  Commissioners 501 

Ruiz  V.  Norton 154 

Rumsey  v.  Leek 608 

Rundell  v.  La  Fleur 678 

Rundle  v.  Little 157 

Runyon  v.  Latham 516 

Runyan  v.  Mersereau 363 

Runyan  v.  Morgan 417 

Rupp  v.  Sampson 248,  271 

RuKsell  V.  Annable 676 

Russell  V.  Babcock 97 

Russell  V.  Bangley 284 

Russell  V.  Cook 96 

Russell  V.  Drummond 436 

Russell  V.  Faiier 183,  185 

Russell  V.  Gilmore 376,  378,  385 

Russell  V.  Ilankey 245 

Russell  V.  Howard 352 

Russel  V.  Langstaffe 593 

Russell  V.  Miner 487 

Russell  V.  Petrie 155,  368 

Russell  V.  Ruckman 423 

Russian  Steam  Nav.  Co.  v.  Silva. . . .  532 

Russell  V.  Slade 393 

Russell  V.  Swan 586 

Russell  V.  Tomlinson 318 

Russell  V.  Wliippiu 543 


PAGE. 

Rutherford  v.  Branch  Bank 185 

Rutland  &  Burlington  R.  R.  Co.  v. 

Cole 279 

Rutherford  v.  Jones 152 

llutledge  V.  Moore 399 

Rutledge  v.  Smith 329 

Rutton  V.  RuttoQ 201 

Ryan  v.  Doyle 435 

Ryan  v.  Dunlap 519 

Ryan  v.  Martin 453 

Kyau  V.  Marsh 409 

Ryan  v.  N.  Y.  Cent.  R.  R.  Co 162 

Ryckman  v.  Coleman 446 

Ryckman  v.  Qillis 144 

Ryer  v.  Stockwell 100 

Rylands  v.  Fletcher J .  161 

Rylaud  v.  Noakes 463 

Sacia  v.  Berthoud 328 

Sack  V.  Ford    521 

Sackett  v.  Palmer 549 

Sackett  v.  Speucer 543 

Sacramento  v.  Dunlap 677 

Sackrider  v.  McDonald 303 

Saddlesvene  v.  Arms 413 

Saffbrd  v.  Wyckoff 608 

Sage  V.  Harpending 55 

Sage  V.  Hawley 384 

Sage  V.  Hazard 103 

Sage  V.  Wilcox ; 98 

Sale  V.  Pratt 710 

Salem  Bank  v.  Gloucester  Bank,  231,  513 

Salisbury  v.  Brisbane 218,  291 

Salisbury  v.  Morss 351 

Salinas  v.  Wright 558 

Salman  v.  Hoft'man 170 

Salmon  v.  Mallett 734 

Salmon   J'alls   Manuf.    Co.  v.  Ports- 
mouth Co 123 

Salomons  v.  Nissen , 529 

Salter  v.  Ham 188 

Saltmarsh  v.  Bower 370 

Saltmarsh  v.  Smith 290 

Salters  v.  Everett   524 

Same  v.  Bailey 734 

Same  v.  Same 390 

Samford  v.  Eighth  Avenue  R.  R.  Co.,  344 

Sampson  v.  Ohleyer 434 

Sampson  v.  Somerset  Iron  Works. . .  271 

Samuels  v.  Dubuque 453 

San  Antonio  v.  Lane 689 

Sanborn  v.  French 94 

Sanborn  v.  Neil  son 200,  201 

Sandback  v.  Thomas 439 

Sanders  v.  Bacon 598 

Sanders  v.  Gillespie 71 

Sanderson  v.  Brown 104,  389 

Sanderson  v.  Jackson 555 

Sanderson  v.  Jones 654,  656 

Sanderson  v.  Ralston 420 

Sanford  v.  Dodd Ill 

Sanford  v.  Howard 86 

Sanford  v.  Michles 592,  640 

Sanford  v.  Sanford.  205,  206,  207,  208,  213 

Sangster  v.  C'ommon wealth 405 

Sauxay  v.  Hunger 66^ 


TABLE  OF  CASES. 


Ixxxvii 


PAGE. 

Saratoga  County  Bank  v.  King 106 

Sarcli  V.  Blackburn 309 

Sargeant  v.  Carr 424 

Sargeant  v.  Currier 110 

Sargent  v.  Morris 279,  280 

Sargeant  v.  Robbins 596 

Sasportas  v.  Jennings 671 

Sater  v.  Hendershott 370 

Satterlee  v.  Bliss 469 

Satterthwaite  v.  Vreeland 270 

Saunderson  v.  Jackson 113 

Savage  v.  Foy 718 

Savage  v.  Rix 238 

Savannah  National  Bank  v.  Haskius,  165 
Savannah,    etc.,   Canal   Co.   v.  Bour- 

quin 737 

Saveland  v.  Green 273 

Sawyer  v.  Chambers 608 

Sawyer  v.  Corse 267 

Sawyer  v.  Lorrillard 276 

Sawyer  v.  Mawgridge 673 

Sawyer  v.  Northfield 732 

Sawyer  v.  Vaughn 90 

Sawyer  v.  Vilas 490,  491 

Saxton  v.  Johnson 401 

Saxton  V.  Stowell 475 

Sayles  v.  Baker 207 

Sayre  v.  Nichols 239 

Scarsbo rough  v.  Harris 628 

Scarborough  v.  Reynolds 235 

Sceva  V.  True 73 

Schaumburg  v.  Hepburn 164 

Schaferman  v.  O'Brien 369 

Scheetz's  Appeal 652 

Schee  v.  Hassinger 252 

Schell  v.  Stephens 480 

Schenck  v.  Ellingwood 169 

Schettler  v.  Smith 192,  195 

Schermerhorn  v.  Barhydt 351 

Schermerhorn  v.  Loines 570 

Scheutze  v.  Bailey 218 

Schieffelin  v.  Harvey 264 

Schlect's  Appeal 660 

Schlencker  v.  Moxsy 374 

Schmaltz  v.  Avery 280 

Schnader  v.  Schnader 392 

Schmaling  v.  Thomlinson 215 

Schmell  v.  Nell 95 

Schmidt  v.  Schmaelter 555 

Schnier  v.  Fay 580 

Schneider  v.  Morris 113 

Schofield  V.  Bayard 631 

Schoolfield  v.  Bell ' 529 

School  Trustees  v.  Bennett 171 

School  District  v.  Rood 491 

Schoenwald  v.  Metropolitan  Savings 

Bank 504,  510 

Schrondenbeck  v.  Phoenix  Fire  Ins. 

Co 457 

Schroyer  v.  Lynch 267 

Schultz  V.  Astley 593 

Schumaker  v.  Ely 528 

Schuylkill  County  v.  Copley 677,  702 

703 

Schweizer  v.  Weiber 408 

Scofield  v.  Lansing 665 


PAGE. 

Scott  V.  Brigham 423 

Scott  V.  Cleveland 166 

Scott  V.  Elmendorf 221,  443 

Scott  V.  Hoxsie 464 

Scott  V.  Jester 275 

Scott  V.  Lance 189,  190 

Scott  V  Mann 246,  479 

Scott  V.  McGrath 240 

Scott  V.  Onderdonk 662,  667,  669 

Scott  V.  Rogers 242 

Scott  V.  Scott 153 

Scott  V.  Searles 587 

Scott  V.  Seller 441 

Scott  V.  Shepherd 38,  147 

Scott  V.  Shreeve 366 

Scott  V.  Surmau 179 

Scott  V.  Warner 95 

Scott  V.  Van  Alstyne 456,  475 

Scribner  v.  lieach 54,  340 

Scribner  v.  Kelley 311 

Scruggs  V.  Gass 573 

Scruggs  V.  Luster 175 

Scudder  v.  Union  Nat.  Bank  of  Chi-    , 

cago 623 

Seabury  v.  Hungerford 596 

Seacord  v.  Burling 549 

Seacord  v.  Miller 627 

Seago  V.  Harrison 152 

Sea  Ins.  Co.  v.  Stebbina 659 

Seaman  v.  Seaman 96 

Seaman  v.  Smith 712 

Seaman  v.  Whitney Ill 

Searle  v.  Lord  Barrington 705 

Sears  v.  Conover 99,  358 

Sears  v.  Wills 276 

Sears  v.  Wiugate 531 

Seaton  v.  Cordray 449 

Seaver  v.  Young 691 

Seay  v.  Greenwood 426 

Sebel  V.  Tucker 586 

Sebree  v.  Dorr  ...    166 

Secor  V.  Bell 456 

Secombe  v.  Edwards 118 

Seddon  v.  Senate 116 

Seeley  v.  Crane 451 

Seeley  v.  Engell 567,  568,  598,  642 

Seely  v.  People 701 

Segar  v.  Parrish 271 

Seldonrigde  v.  Connable 555 

Selden  v.  Delaware,  etc.,  Canal  Co. .  .  737 

Selden  v.  Pringle 605 

Seneca  County  Bank  v.  Lamb 500 

Seneca  County  Bank  v.  Neass  . .   611,  631 

638 

Sergeant  v.  Pettibone 450 

Seton  V.  Slade 167,  479 

Setzar  v.  Wilson 470 

Seventeenth  Street 709 

Seventh  National  Bank  v.  Cook 505 

508 

Sevitsky  v.  Johnson 686 

Sewall  V.  Glidden 372 

Sewall  V.  Henry 123 

Seward  v.  Baker 380 

Sewanee  Mining  Co.  v.  McCall 225 

Sexton  V.  Fleet 362 


Ixxxviii 


TABLE  OF  CASES. 


PAGE. 

Sexton  V.  Pike 153 

Seybel  v.  Nat.  Currency  Bank. .  614,  689 

Seymour  v.  Delancy 672 

Seymour  v.  Ellison 432 

Seymour  v.  Gartside  . .  . .' 723 

Seymour  v.  Greenwood 265 

Seymour  v.  Long  Dock  Co 174 

Seymour  v.  Page 717 

Seymour  v.  Pyclilan 285 

Seymour  v.  Seymour 354 

Seymour  v.  Van  Slyck 177,  680 

Seymour  v.  WyckofE 219 

Shafifer  v.  Lee 686 

Shank  v.  Butsh 555 

Share  v.  Wilson 118,  121 

Sliarp  V.  Carter 659 

Sliarpe  v.  Drea 621 

Sharp  V.  Edgar 358 

Sharpe  v.  Hunter 426 

Sharpe  v.  Rodgers 97 

Sharp  V.  United  States 677 

Sharp  V.  Wright 483 

Shattuck  V.  Carson 669 

Shattuck  V.  Hammond 201,  203,  204 

Shaughnessy  v.  Fogg 473 

Shaver  v.  Ehle 600 

Shaver  v.  Norris 451 

Shaver  v.  Western  Union  Tel.  Co  . . .  552 

Shaw  v.  Gardner 531 

Shaw  v.  Reed 700 

Shawham  v.  Clarke 308 

Shays  v.  Norton 664 

Sheaham  v.  Barry 728 

Shear  v.  Overseers  of  Hillsdale,  375,  390 
Shearman  v.  Niagara  Fire  Ins.  Co. .  .  371 
Shetfield  Canal  Co.  v.  Sheffield  and 

Rotherham  R.  R.  Co 87 

Sheffield  Water  Works  v.  Yeomans,  649 

650 

Sheldon  v.  Babock 121 

Sheldon  v.  Rockwell 652 

Sheldon  v.  Sherman 161 

Shell  V.  Martin 664 

Shelton  v.  Marshall 130 

Shelton  V.  Merchants'  Dispatch  Trans. 

Co 216,  222 

Sliepherd  v.  Guernsey 155 

She[)ard  v.  Hawley   621 

Shepherd  v.  Lincoln 739 

Shepard  v.  Little 378,  380 

Shepherd  v.  Newkirk 409 

Shepherd  v.  Temple 615 

She])pard  v.  Wilkins 191 

Shepardson  v.  Milwaukie  Co 667 

Sheritt'  v.  Smith 458 

Sherman  v.  Barnard 95,  106 

Sherman  v.  Gassett 130 

Sherman  v.  N.  Y.  Central  R.  R.  Co  . .  385 

Sherman  v.  Rawaon 728 

Shermer  v.  Beale 681 

OTierwood  v.  Saratoga,  etc.,  R.  R.  Co.,  247 

448 

Sherwood  v.  Smith 205 

Sliields  V.  {'one 163 

Shields  V.  Commonwealth 166 

Shields  v.  Friuglo 704 


PAGB. 

Shields  v.  Shields 655 

Shipman  v.  Cook 569 

Shirfey  v.  Bartley 308 

Shirk's  Appeal 196,  197 

Shiver  v.  Brock 206,  207 

Shoemaker  v.  Kellogg 189 

Shoemate  v.  Lockridge 666 

Shoop  V.  Clark 399 

Shook  V.  Daly 359 

Shores  v.  Caswell 439 

Shore  v.  Wilson 116 

Shorr  v.  McCameron 351 

Short  V.  Skipwith 252 

Short  V.  Stone 725 

Short  V.  Town  of  Lancaster 682 

Shorter  v.  People ...  348 

Shotwell  V.  Shotwell 657 

Shotwel]  V.  Weeb 364 

Shriver  v.  Stevens  ^ 226 

Shufeldt  V.  Abernethy 323 

Sibree  v.  Tripp 511 

Sibley  v.  Waffle 468 

Sice  V.  Cunningham 619,  640 

Sidwell  V.  Evans 98 

Siegel  V.  Gould 448 

Sigfried  v.  Levan 678 

Sigler  V.  Smith 571 

Sigourney  v.  Lloyd 591,  597 

Sill  V.  Rood 400,  615 

Silvernail  v.  Cole 95,  96,    97 

Silvis  V.  Ely 441 

Siltzell  V.  Michael 384 

Simmons  v.  Law 129 

Simmons  v.  Walker 705 

Simpson  v.  Barry 392 

Simpson  v.  Black 728 

Simpson  v.  Dendy 709 

Simpson  v.  Lombas 439 

Simpson  v.  Warren 399 

Simons  v.  Monier 161 

Simonds  v.  Heard 238 

Simonds  v.  Henry 241 

Simonson  v.  Kissick 270 

Simonton  v.  Barrell 443 

Sims  V.  Brown 461 

Sims  V.  Gurney 184 

Sims  V.  Harris  695 

Sims  V.  Lively 327,  329,  330 

Sims  V.  Sims 351 

Suns  V.  Stillvvell 588 

Sinclair  v.  Jackson 218 

Singleton  v.  Bramer 674 

Singleton  v.  Mann 215 

Sinuard  v.  McBride 409 

Sipperly  v.  Stewart 129 

Sisson  V.   Willard 397 

Sitgrcaves  v.  Farmers  and  Mechanics' 

Bank 277 

Skeate  v.  Beale 671 

Skelton  v.  Brewster 93 

Skeel  V.  Spraker         186 

Skilding  v.  Warren 608,  01 1 

Ski  lieu  V.  Ri(;limond 596 

Skip  V.  Ilarwood 658,  659 

Skipper  V.  Stokes 355 

Skinner  v.  Demming 513 


TABLE  OF  CASES. 


Ixxxix 


PAGE. 

Skinner  v.  Gunn 223,  237 

Skinner  v.  Maxwell 659 

Skinner  v.  Somes B68 

Skinner  v.  Wynne 207 

Slack  V.  Kirk 601 

Slade's  Case 374 

Slade  V.  Teasdale 190 

Slade  V.  Van  Vechten 180 

Slater  v.  Irwin 231 

Slatert  v.  Rink , .  345 

Sledge  V.  Lee 427 

Slemi'er's  Appeal 155 

Sloan  V.  Gibson 90 

Sloan  V.  Summers 364 

Slone  V.  Thomas 603 

Slocum  V.  Holmes 5G9 

Slocum  V.  Hooker 158 

Slocum  V.  Newby 447 

Sloo  V.  Law 463 

Small  V.  Atwood 282 

Small  V.  Herkimer  Manufacturing  Co.    43 

Small  V.  Sloan 99 

Small  V.  Smith 608,  611 

Smart  v.  Baugh 400 

Smedes  v.  Elmendorf ; 460 

Smedes  v.  Utica  Bank 516,  518 

Smilie  v.  Stevens 356 

Smith  V.  Abbott 576,  625 

Smith  V.  Algar    98 

Smith  V.  Allison 200 

Smith  V.  Applegate 571 

Smith  V.  Arnold 487 

Smith  V.  Aylesworth 41,  641 

Smith  V.  Barker 403 

Smith  V.  Bassard 438 

Smith  V.  Birmingham  Gas  Co. 219 

Smith  V.  Boston,  etc.,  R.  R 395 

Smith  V.  Bowditch 448 

Smith  V.  Bowes 170 

Smith  V.  Braine 611 

Smith  V.  Brotherline 468 

Smith  V.  Busby 701 

Smith's  Case 334 

Smith  V.  Causey 308 

Smith  V.  Chatham 715 

Smith  V.  Condry    252 

Smith  V.  Cook 310 

Smith  V.  Crooker 676 

Smith  V.  Davis 451 

Smith  V.  Dixon 440 

Smith  V.  Dodge 714 

Smith  V.  Eakin 427 

Smith  V.  Essex  Co.  Bank 516 

Smith  V.  Faulkner 115,  122 

Smith  V.  Gardner 540 

Smith  V.  Gibson 223 

Smith  V.  Giegrich 574 

Smith  V.  Great  Eastern  Railway  Co. .  316 

Smith  V.  Green 818 

Smith  V.  Hamilton 719 

Smith  V.  Hawkins 733 

Smith  V.  Holcomb 345 

Smith  V.  Howden 7C9 

Smith  V.  Jewett 168 

Smith  V.  Jonea 506 

Smith  V.  Junction  Railway  Co 142 

L 


PAGE_ 

Smith  V.  Kendall 563 

Smith  V.  Knox 610 

Smith  V.  Levaux 174 

Smith  V.  Lipscomb 468 

Smith  V.  Lusher 541,  672 

Smith  V.  Masten 199,  203,  204 

Smith  V.  Masters 201 

Smith  V.  McAllister 718 

Smith  V.  McClusky Ill 

Smith  V.  McGehee 401 

Smith  V.  McGuire 591 

Smith  V.  McNamara 718 

Smith  V.  Mead 130 

Smith  V.  Merger 600 

Smith  V.  Miller 506,  569 

Smith  V.  Moore 100 

Smith  V.  MuUikin 438 

Smith  V.  Muncie  Bank 625 

Smith  V.  Nelson 119 

Smith  V.  New  York  &  New  Haven  R. 

R.   Co 360 

Smith  v.  Nightingale 551 

Smith  V.  Niles 424 

Smith  v.  Orser 423 

Smith  V.  Ostrand 661 

Smith  V.  Overby 345 

Smith  V.  Pelah 314 

Smith  V.  People's  Bank 422 

Smith  V.  Pittsburgh,  etc.,  R.  R.  Co. .   346 

Smith  V.  Poor 563 

Smith  V.  Rankin 357 

Smith  V.  Rockwell 164,  605,  606,  639 

Smith  V.  Rogers 92,  364 

Smith  V.  Schanck 567,  568 

Smith  V.  Sherman 727 

Smith  V.  Slocum 340 

Smith  V.  Smith. . .   190,  208,  209,  210,  377 
386,  406,  568 

Smith  V.  Starr 365,  582 

Smith  V.  State 333,  344,  474 

Smith  V.  Stewart 434 

Smith  V.  Stinson 694 

Smith  V.   Story 426,  428 

Smith  V.  Sublett 236 

Smith  V.  Thompson 467 

Smith  V.  Tracy 233 

Smith  V.  Tucker ; 192 

Smith  V.  Vertue 625 

Smith  V.  Water  Com 231 

Smith  V.  Weed 98 

Smith  V.  Whildin 100 

Smith  V.  White ■ 43 

Smith  V.  Whiteside 254 

Smith  V.  Wilson <j71 

Smith  V.  Woodfine 727 

Smith  V.  Woodward 705 

Smith  V.  Wright 59 

Smith  V.  Young.    455,  603 

Smithwick  v.  Evans •. .  473 

Smock  V.  Dade 490,  493 

Smothers  v.  Hanks 241 

Snee  v.  Prtscot 591,  597 

Siieed  V.  Wiester 178 

Siielgrovo  v.  Sni'lgrove 211 

Sneliiug  V.  Boyd 591 

Suelliag  v.  lloward 257,  260 


xc 


TABLE  OF  CASES. 


PAGE. 

Sneeal^y  v.  Lancashire,  etc.,  Railway  ^^^ 

Co no  A 

Snyder  v.  Castor ^?* 

Soilleaux  v.  Soilleaux -^^ 

SoUory  v.  Leaver ^)r 

Soloman  V.  Holt A,:-:" 

Somes  V.   British   Empire   Shipping 
f~i  Zio 

Somes  V.  Skinner j^-;^ 

SommerviUe  v.  Stephenson o»/ 

Soper  V.  Sumner  ^»^ 

Sossaman  v.  Powell •  •  •  oo* 

Southard  V.  Kexford 737,  728 

Southgate  v.  Montgomery i»» 

South  wick  V.  Estes *»^ 

South  wick  V.  Sax ^^^ 

Southwick  V.  South  wick iJ^ 

South  Carolina  Soc.  v.  Johnson bJl 

Southern  Exp.  Co.  v.  Palmer.  •••••••  -^^^ 

louth-WesJn  Freight  Co.^  _v._  Stan-  ^^^  |  ..ani.y  J^^ 

Spattbrd  V.  Page •  •  V 

Spaids  V.  Barrett -l*^' 

Spangler  v.  Springer 

Sparks  v.  Martindale ^'^ 

Sparrow  v.  Chisman •  •  •  •  o^" 

Snauklin^  v.  Crawford 672.  678 


PAGE. 

Spurrier  v.  Elderton 481 

Spyer  v.  Fisher ■**' 

Squares  v.  Campbell •  •  •  •     o^ 

Squier  v.  Norris fj>  ^^'^ 

Staat  V.  Evans 403,  405 

Stacy  V.  Pearson :|^^ 

Stacey  v.  Randall •  •  •  •   ^^^ 

Stack  V.Banks 734,  739 

Stackhouse  v.  O'Hara •  •  •  4d0 

Statford  v.  Ingersol o^)9,  6U 

Stafford  v.  Yates 
Stagg  V.  Elliott. 
Staines  v.  Shore 
Stainer  v.  Tysen 


647 
591 

482 
227 


363 
671 
194 


St.  Albans  v.  Failey    •  •  •  ■  •  •  •  •  fg 

Stalker  v.  McDonald 590,  613,  642 

Staniford  v.  Barry 491,  4yd 

Standiford  v.  Gentry '^^ 

Stanly  v.  Nelson ^J^" 

Stanley  v.  Brannon -"o 

Stapleford  v.  Brinson ')^ ' 

Stamford  Bank  v.  Benedict 1 '  ^ 

Standish  v.  Dow ""^ 

Stanford  v.  Mangin '^^ 


Spaukling 

Spaulding  v.  Oakes ^^^ 

Spaukling  V.  Ruding »-^ 

Spaulding  v.  Simms *^^ 

Spaulding  V.  Wallett 4^« 

Spaulding  v.  Warren ^^» 

Speake  v.  Sheppard oOJ 

Speaker  v.  United  States »»' 

Spear  v.  Atkinson »^° 

Spear  v.  Cummings ^*^ 

Spears  v.  Ledergerber •  ■  •  '^oo 

Spear  V.Myers 591,  612 

Spearv.  Pratt o-^ 

Spear  v.  Stacy ^^' 

Spedding  V.  Newell -o^ 

Speed's  Ex'r  v.  Adams ow 

Speek  V.  Commonwealth oJo 


Stansbury  v.  Marks 400 

Stanton  v.  Blossom «^° 

Stanton  v.  Camp •  •  •  •  •  •  •  •   *^^ 

Stanton  v.  Eager 524,  527,  529 

Starbird  v.  Moore  . . . 
Btarke  v.  Cheeseman 

Stark  V.  Coffin 

Starke  v.  Kenan 

Stark  V.  Parker J»« 

Starnes  v.  Erwin. *"^ 

Starr  v.  Vanderheyden ^OD 

State  V.  Atherton 
State  V.  Baker 
State  V 


492 
373 
709 
440 


687 
335 


.*  Bartlett ••••.••;'•■   ri2 


Spencer  v 
Spencer  v, 
Spencer  v, 
Spencer  v 


Blaisdell 432,423 

Buchanan 

Field 

Harding ^^^ 


678 
236 


State  Bank  v.  Bank  of  the  Capitol. ..   518 

State  V.  Beck 36,  14b,  d44 

State  V.  Blackwell •  •  •  •  ^^* 

State  V.  Blakemore 691,  bJ^ 

State  V.  Bodly  . . . 
State  V.  Boscawen 
State  V.  Bowman 

State  V.  Bryson 1^;'^ 

State  V.  Campton '^-t 

TT  i),i  i  I  State  V.  Chase  ...  

Spencer  v.  Harvey ^- M  g  ^^^  ^  chrisman „_ 

Spencer  v^Kinnard So    State  v.  Church 332 

Sperry's  Estate .    Jg    State  v.  Clark 

Sperry  v  Willard •  •  •  •  ^^  Clements 

Spies  V.  Gilmore oJb,  bd4,  o^o  j  ^^^^^  ^  Commercial  Bank ,. .,  •  519 

Spinks  V.  Davis  •  •  •  •  ^*' 

Spooner  v.  Holmes 688,  b8J 


680 
731 
690 
338 


State  v. 


514 


Sporrer  v.  Eifler ^fi 

Spraights  v.  Hawley ^"'^ 

Spratt  V.  M'Kinneys *50J 

Sprauge  v.  Gillett .  •  •  •  • .  „„ 

Sprauge  v.  Ilazen winkle ^' ' 

Spray  v.  Ammerman '^■^^ 

Spring  V.  Coffin 

Spring  V.  Right  ...... . . .  •  •  •  •  •  • 

Spring  V.  South  Caroling  Ins.  Co  ^^^^  _^^^^ 

Springer  v.  Whipple 439 

Springsteen  v.  Sampson '■^'^ 


111 

208 

277 


Comni--                                  . 
Slate  V.  Commercial  Bank  of  Cincin- 
nati        .r,,> 

State  V.  Conkling ^ ' " 

State  Bank  v.  Corwitli ^J» 

State  V.  Crow pj 

State  V.  Dearborn •  • ' '    ""* 

State  V.  Dunnavant ^'■'> 

State  V.  Elliott 

State  V.  Epperson •  •  •  • 

State  V.  Gilmanton >^^> 

State  V.  Givan 

State  V.  Green 

State  V.  Hampton 


120 
341 
332 
712 
690 
201 
332 


TABLE  OF  CASES. 


xci 


PAGE. 

State  V.  Hastings 261 

State  Bank  v.  Hastings 99,  359,  361 

State  V.  Hazleton 468 

State  V.  Holding 474 

State  V.  Inhabitants  of  Freeport  ....  730 

State  V.  Jennings 378 

State  V.  Jersey  City 712 

State  V.  King 732 

State  V.  Lafaivre 115 

State  V.  Lawson 423 

State  V.  Layton 684 

State  V.  Malcolm  332 

State  V.  Manly 423 

State  V.  Martin 343 

State  V.  Matthis 215 

State  V.  Mooney 333 

State  V.  Morgan 333 

State  V.  Myers 333 

State  V.  Oden 679 

State  V.  Parrott 735 

State  V.  Porter  .    . 148 

State  V.  Quinn 847 

State  V.  Rawles 332 

State  Mut.  Fire  Ins.  Co.  v.  Roberts . . .  366 

371 

State  V.  Rousseau 695 

State  V.  Rucker 476 

State  V.  Scoggin ; . .   697 

State  V.  Seawall 732 

State  V.  Shepard 332 

State  V.  Sims 333 

State  V.  Smith 332 

State  V.  Start 434 

State  V.  Taylor 301 

State  V.  Thomas 427.  429 

State  V.  Thompson 675,  684 

State  V.  Thomson 670 

State  V.  Turner 299 

State  V.  Turnpike  Co  734 

State  Bank  v.  Van  Horn 513 

State  V.  Vannoy 332,  333 

State  V.  Van  Pelt 692 

State  V.  Watkins 434 

State  V.  Wells 689 

State  V.  Wiiliams 342 

State  V.  Woodside  . .  , 447 

State  V.  Woodward 340 

State  V.  Young 718 

Steam  Navigation  Co.  v.  Wright  ....   358 

Stearns  v.  Felker 452 

Stearns  v.  Marsh 277 

Stearns  v.  Page 198 

Stearns  v.  Sampson 335 

Stebbins  v.  Nilfes 191,  194 

Steele  v.  Buck 703 

Steele  v.  Ellmaher 480,  483,  484 

Steele  v.  Mcintosh 254 

Steene  v.  Aylesworth 390 

Steere  \r.  Steere 208 

Steiglemau  v.  Jeffries 377 

Steinfield  v.  Levy 725 

Steinhart  v.  Boker 614 

Stenton  v.  Jerome 192,  194,  195 

Stephens  v.  Graham 402 

Stephen  v.  Mattox 472 

Stephen  v.  Myers 383 


PAGE. 

Stephen  v.  Smith 344 

Stephenson  v.  New  York  &  Harlem 

R.  R.  Co 226 

Stephenson  v.  Taverners 657 

Stettheimer  v.  Meyer 611 

Stetlar  v.  Nellis 347 

Steuben  Co.  Bank  v.  Mathewson    . . .  700 

Stevens  v.  Adams  451 

Stevens  v.  Boston  and  Maine  R.  R. . .  250 

Stevens  v.  Cooper 183 

Stevens  v.  Damon 189,  190 

Stevens  V.  Judson 702 

Stevens  v.  Legh 481 

Stevens  v.  McNeill 568 

Stevenson  v.  Newnham 36 

Stevens  v.  Strong 541,  543 

Stevens  v.  Walker 241,  445 

Stevens  v.  Wheeler 528 

Stevenson  v.  Hoy 223 

Stevenson  v.  Robbins  . .  .  -> 412 

Stewart  v.  Ahrenfeldt 95 

Stewart  v.  Ball 301 

Stewart  v.  Balderson 360,  308 

Steward  v.  Biddlecum 221,  443 

Stewart  v.  Clark 686 

Stewart  V.  Cole 417 

Stewart  v.  Coulter 720 

Stewart  v.  Eden 629,  636 

Stewart  v.  Flowers 454,  455 

Stewart  v.  Hawley 144 

Stewart  v.  Kerr 173 

Stewart  v.  Lang  . '. 123 

Stewart  v.  Mather 248,  270 

Stewart  v.  McGuin 97 

Stewart  v.  Saybrook 400 

Stewart  v.  Small 591 

Stewart  v.  Smith 506 

Stewart  v.  Southard 149 

Stewart  v.  Stewart 354 

Stewart  v.  Stokes 170 

Stewart  v.  West 367 

Stewartson  v.  Lothrop 43 

Stickney  v.  Stickney 697 

Stief  V.  Hart 45 

Stier  V.  Surget 380 

Stiles  V.  Brown 193 

Stille  V.  Traverse 523 

Stimpson  v.  Sprauge 379 

Stipp  V.  Johnston 384 

Stirling  v.  Forrester 183 

Stitt  V.  Huidekopers 83,     84 

St.  John  V.  Diefendorf 454,  455 

St.  John  V.  Purdy 569 

St.  John  V.  St.  John's  Church 273 

St.  Louis  V.  Clemens 356,  358 

St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  421 
St.  Louis  and  Memphis  Packet  Co.  v. 

Parker 228 

St.  Louis,  etc.,  Ins.  Co.  v.  Soulard. . .   398 

St.  Mary's  Church  v.  Stockton 327 

Stocketl  V.  Watkins 406 

Stockton  V.  Turner 683 

Stockwell  V.  Bramble 592,  623 

Stockham  v.  Stockham 86 

Stoddard  Woolen  Manuf.  v.  Huntley,  276 
Stoessenger  v.  South-E.  Railway  Co.,  555 


XCll 


TABLE  OF  CASES. 


PAGE. 

Stokes  V.  Turnpike  Co 381 

Stokely  v.  Robinson , .  438 

Stone  V.  Chamberlain 490 

Stone  V.  Compton. 703 

Stone  V.  Miller 411 

Stone  V.  Myers 679 

Stone  V.  State 478 

Storer  v.  Freeman 710 

Storey  v.  Robinson 63 

Storking  v.  Sage ■. 272 

Storm  V.  Stirling 538 

Story  V.  Lovett 113 

Story  V.  Odin 294,  295 

Stout  V.  Cook 664 

Stout  V.  Rassel 403 

Stout  V.  St.  Louis  Tribune  Co 382 

Stout  V.  Wren 345 

Stover  V.  Eycleshimer 356 

Stow  V.  Black 189 

Stow  V.  Hamlin 451 

Stowe  V.  Sewall 899 

Stowell  V.  Haslett 604 

St.  Pancras  v.  Battenbury 42 

St.  Peter  v.  Denison 145,  736 

Strange  v.   Harris 660 

Stratton  v.  Henderson 447 

Strelly  v.  Wilson 180 

Streeter  v.  Poor 235 

Streeter  v.  Streeter 120 

Strickland  v.  Wood  worth 62 

Stringham  v.  St.  Nicholas  Ins.  Co.  230,  235 

Strobel  v.  Large .' 387 

Strock  V.  Little 413 

Strohickerv.  Farmers'  Bank,  118,  124,  131 

Stroheckex  v.  Grant 390 

Stroh  V.  Hess 367 

Strong  V.  Barnes 123 

Strong  V.  Dunlap 730 

Strong  V.  Hart 285 

Strong  V.  Stevens 643 

Stronghill  v.  Anstey 327,  329,  330 

Strotlier  v.  Hamburg 365 

Strother  v.  Missouri 433 

Stroud  v.  Barnett 351 

Stroud  V.  Tilton 190,  191 

Strou.se  v.  Whittlesey 161 

Strutt  V.  Smith 408 

Stuart  V.  Hawley 101 

Studabaker  v.  White 084 

Stumps  V.  Kelly 312 

Sturgess  v.  Cary 184 

Sturt  V.  Manjuis  of  Blandford 201 

■  Succession  of  Liles 444 

Suffolk  Bank  v.  Lincoln  Bank  . .  513,  514 

Sullivan  v.  Finuegan 603,  064 

Sullivan  v.  Lewiston  Inst,  for  Sav- 
ings     510 

Sullivan  v.  Scripture 309 

SuUivant  v.  Reardon 685 

Sumner  v.  Reickeniker 271 

Sunbury  &  Erie  R  R.  Co.  v.  Hummell,  145 
Supervisors  of  Onondaga  v.  Brigga. .  18 
Supervisors  of  St.  Joseph   v.  Cotftiu- 

bnry 682 

Sussdorff  V.  Schmidt 452 

Sutliorland  v.  Pratt 397 


PAGE. 

Sutphen  v.  Cushman 198 

Sutton  V.  Bishop 489 

Sutton  V.  Dillaye 231 

Sutton  V.  Kettell 521 

Sutton  V.  Tatham 229 

Suydam  v.  Allen 255 

Suydam  v.  Clark 83 

Suydam  v.  Jackson 172 

Suydam  v.  Vance 459 

Suydam  v.  Westfall 617,  618,  642 

Swallow  V.  Beaumont 398 

Swan  V.  Cox 576 

Swansborough  v.  Coventry 294 

Swasey  v.  Little 327 

Swanzey  v.  Parker 367 

Swartwout  v.  Mechanics'  Bank 504 

Sweeney  v.  Willing 378 

Swepson  v.  Harvey 369 

Sweet  V.  Chapman 614 

Sweeting  v.  Fowler 540,  543 

Sw^etser  v.  French 219 

Swift  V.  Chamberlain  ......   148 

Swift  V.  Crow 082 

Swift  V.  Hawkins 702 

Swift  V.  Hopkins 263 

Swift  V.  Marsh 399 

Swing  V.  Sparks 189 

Swisher  v.  Grumbles 123 

Sykes  v.  Giles  . .' 477 

Sykes  v.  Laffery , 98 

Sykes  v.  Summerel 384 

Symonds  v.  Carr 393 

Syracuse,  etc.,  R.  R.   Co.  v.  Collins. .  569 

624 

Tabor  v.  Cannon ....  228,  259 

Tabor  v.   Parrott 266 

Taft  Vale  R.  C.  v.  Nixon 174 

Taft  V.  Inhabitants  of  Montague. . . .  376 

Taintor  v.  Prendergrast 280,  281,  282 

Talbert  v.  Cason 400 

Talbot  v.  Dailey 403 

Talbot  v.  McGee 440 

Taliaferro  v.  Cundiif 115 

Taliaferro  v.  Lane 421 

Taliaferro  v.  Porter 434 

Tallant  v.  Burlington   Gas-light   Co.,  426 

428 
Talledaga  Ins.  Co.  v.  Woodward  ....  511 

Tankeraly  v.  Anderson 436 

Tanlkerslig  v.  Childers 407 

Tanner  v.  Bank  of  Fox  Lake 568 

Tappan  v.  Austin 402 

Tapley  v.  Coffin 452 

Tapling  v.  Jones 293 

Taplin  v.  Packard 398,  540 

Tarbell  v.  Bradley 413 

Tarrent  v.  Booming  Co 667,  668 

Tate  V.  Booe 686,  693 

Tate  V.  Evans 240 

Tatlock  V.   Harris 81 

Taught  V.  Holway 718 

Taunton   Copper   Co.   v.   Merchants' 

his.  Co 129 

Tayloe  V.  Merchants' Fire  Ins.  Co...     86 
Taylor  v.  Allen 055 


TABLE  OF  CASES. 


XClll 


PAGE. 

Taylor  v.  Ashton 139 

Taylor  v.  Atchison 566 

Taylor  v.  Atkinson 615 

Taylor  v.  Bates 254 

Taylor  v.  Benham 239 

Taylor  v.  Branch  Bank 44y 

Taylor  v.  Bullen 584 

Taylor  v.  Clendening 338 

Taylor  v.  Dobbins 555 

Taylor  v.  Drane 413 

Taylor  v.  French 637 

Taylor  v.  Glazer 670 

Taylor  v.  Harlow 240 

Taylor  v.  Holman 176 

Taylor  v.  Morrison 185 

Taylor  v.  Myers 418 

Taylor  v.  Nussbaum 223 

Taylor  v.  Palmer 356,  358,  362 

Taylor  v.  Porter 183 

Taylor  v.  Reese 211,  369 

Taylor  v.  Robinson 224 

Taylor  v.  Rountree 665,  666 

Taylor  v.  Shelton 258 

Taylor  V.  Sip 507 

Taylor  v.  Snyder 556,  620,  636 

Taylor  v.  Spears 254 

Taylor  V.    Steamboat   Robert   Camp- 
bell       89 

Taylor  v.  Thomas 565 

Taylor  v.  Tompkins 176,  179 

Taylor  v.  Tucker 191 

Taylor  v.  Williams 239 

Teasdale  v.  Atkinson 372 

Tebbetts  v.  Dowd 634 

Tefft  V.  Marsh 722 

Temper  v.  Barton 207 

Temple  v.  Gove 165 

Templeton  v.  Bascom 97 

Tenant  v.  Elliott 255 

Tenham  v.  Herbert 650,  651,  652 

Terhune  v.  Colton 351 

Terrill  v.  Beecher.  /. 189 

Terwilliger  v.  Wands 149 

Terry  v.  Chandler 718 

Terry  v.  Fargo 223,  231 

Terry  v,  Parker 636 

Terry  v.  Sickles 194 

Teschemacher  v.  Thompson 710 

Tevis  V.  Young 555 

Texas  v.  White 689 

Thackray  v.  Blackett 606 

Thacher  v.  Hannahs 275 

Thacker  v.  Henderson 356 

Thallhimer  v.  BrinckerhofiF 355,  356 

Tharp  v.  Tharp. 194 

Thatcher  v.  Bank  of  the  State  of  N. 

Y 499 

Thatcher  v.  England 100 

Thayer  v.  Kelley 359 

Thayer  v.  King 166 

Thayer  v.  Willett 410 

The  Argentina 527 

The  Auditor  v.  Ballard 101 

The  Delaware 521,  532,  523,  531,  532 

The  Distilled  Spirits 232 

The  Eddy 523 


PAGE. 

The  Floyd  Acceptances 227 

The  Governor  v.  Daily 214 

The  Invincible 525 

The  J.  W.  Brown 531 

The  Juniata  Paton 525 

The  Justices  v.  Wynn 690 

The  King  v.  Box  539,  543 

The  Lady  Franklin 531 

The  Loon 523 

The  Mayflower 521,  523 

The  Mayor  v.  Horn 692 

The  Mohawk 526 

The  Monte  Allegre 478 

The  Olbers 525 

The  Oriflamme 525 

The  Orpheus 425 

The  Peytona ,523 

The  Reeside "129 

The  Thames 524,  529 

The  Tigress 533 

The  Vaughan .    524 

The  Water  Witch 524 

The  Wellington 532 

Thom  V.  Bigland 140 

Thoma  v.  Cappo 207 

Thomas  v.  Bartow 156 

Thomas  v.  Brachney 40 

Thomas  v.  Churton 147 

Thomas  v.  Coldwell 164 

Thomas  v.  Gaye 208 

Thomas  v.  Hatch 711 

Thomas'  Adm'r  v.  Hawks 195 

Thomas  v.  Kerr 480 

Thomas  v.  Roosa 395 

Thomas  v.  Ship  Morning  Glory 525 

Thomas  v.  Steele     457 

Thomas  v.  Todd 572 

Thomas  v.  Winchester 137 

Thomas  v.  White 653 

Thomasson  v.  Agnew 143 

Thompkins  v.  Dudley 171 

Thompkins  v.  Wadley 728 

Thompson  v.  Armstrong 563 

Thompson  v.  Bank   of  the  State  243,  516 

Thompson  v.  Blanchard 90,  231 

Thompson  v.  Brown 178,  350,  354 

Thompson  v.  Busch 342 

Thompson  v.  Carmichael 211 

Thompson  v.  Carper 413 

Thompson  v.  Clubley 610 

Thompson  v.  Downing 524,  582 

Thompson  v.  Emery 370 

Thompson  v.  Kellv , 479 

Thompson  v.  Ketcham 558,  609,  640 

Thompson  v.  Lee  County 688 

Thompson  v.  Lockwood 671 

Thompson  V.  Lynch 664,666,   667 

Thompson  v.  Matthews 733 

Thompson  v.  ^IcCord 701 

Thompson  v.  McCullough 367 

Thompson  v.  Mumma 343 

Thompson  v.  New  York   &   Hudson 

Railroad  Co 729 

Thompson  v.  Railroad  Companies 33 

Thompson  v.  Rose 425 

Thompson  v.  Sloan 546 


XCIV 


TABLE  OF  CASES. 


PAGE. 

Tliompsor  v.  State 691 

Thompson  v.  Stewart 628 

Thompson  v.  Thompson 374 

Thorington  v.  Smith    698 

Thome  v.  Deaa 104,  290 

Thorn  v.  Knapp 727 

Thorn  v.  Woodruff 410 

Thornton  v.  Wood 422 

Thornton  v.  Wynn 376 

Thornett  v.  Haines 484 

Thorold  v.  Smith 477 

Thorp  V.  Burling 265,  285 

Thrall  v.  Newell 120,  121,  367 

Thrallheimer  v.  Brinckerhoff 368 

Thurman  v.  Van  Brunt 617 

Thurmond  v.  Sanders 193 

Thurston  v.  Mink 296 

Thurston  v.  Spratt Ill 

Thurston  v.  Wolfborough  Bank 513 

Thwaites  v.  Mackenzie 460 

Tibbetts  v.  Estes 709 

Tibbetts  v.  Gerrish 574 

Tibbitts  V.  Townsend    420 

Tice  V.  Gallop 222 

Tieman  v.  Leiand 98 

Tier  v.  Lampson 290 

Tierman  v.  Jackson 369 

Tift  V.  Jones 735 

Tiffany  v.  Lord 439 

Tiller  v.  Spradley 256 

Tilman  v.  Allies 397 

Tillmes  v.  Marsh 720 

Tillotson  V.  McCrillis 253 

.  Tillotson  V.  Tillotson 130 

Timms  v.  Shannon 366 

Timothy  v.  Simpson 340,  341 

Timrod  v.   Shoolbred 378 

Tindall  v.  Taylor 524,  532 

Tingley  v.  Cutler 90 

Tipping  V.  Eckersley 654 

Tittle  V.  Thomas 539 

Tobey  v.  Barber 568,  569 

Tobey  v.  Berly 635 

Todd  V.  Reid 284 

Todd  V.   tobey 390 

Tole  V.  Hardy 378 

Tome  V.  Parkersburgh,  etc.,  Railroad 

Co 288 

Tomlinson  v.  Borst 191 

Tomlinson  v.  Mason 702 

Tompkins  v.  Philips 91 

Tompson  v.  Mussey 429 

Toms  V.  Warson 411 

Tonawanda  Railroad  Co.  v.  Hunger..  305 

Torr's  Estate 350 

Torrance  v.  McDougald 125 

Torry  v.  Foas 166 

Torry  v.  Hadley 569,  599 

Totty  V.  Nesbitt 705 

Toussaint  v.  Martinnant 374 

Toulmin   v.  Price 163 

Tower  *v.  Appleton  Bank 512 

Tower  v.  State 332 

Towle  V.  Hatch 450 

Towle  V.  Leavitt 227, 482,  484 

Towle  V.  Stevenson 256 


PAGE. 

Towler  v.  Rountree 213 

Town  of  Queensbury  v.  Culver 879 

Town  of  Delhi  v.  Graham 458 

Town  of   Montgomery  v.  Plank-road 

Co 685 

Towner  v.   Providence  &  Worcester 

Railroad 305 

Townsend  v.  Bank  of  Racine 573 

Townsend  v.  Billinge 567 

Townsend  v.  Carpenter 869 

Townsend  v.  Derby •. 568 

Townshend  v.  Duncan 326 

Townsend  v.  Hubbard 287 

Townsend  v.  Susquehanna  Turnpike,  732 

Towsley  v.  Denison 194,  198 

Tracy  v.  Chicago 128,  126 

Tracy  v .  Strong 825 

Tradesmen's  Bank  v.  Aster 509 

Tradesmen's  Bank  v.  Merritt 510 

Train  v.  Gold 94,  108 

Traip  v.  Gould 175 

Transportation  Co .  v .  Downer 525 

Trasher  v.  Everhart 675 

Trask  v.  Roberts 238 

Traub  v.  Millikin 382,  284 

Travis  v.  Barger 200 

Travis  v.  Tartt 410 

Travis  v.  Thompson 275 

Tread  well  v.  Abrahams 193 

Tread  well  v.  Davis 106,  107 

Treadwell  v.  Moore 177 

Treat  V.  Cellis 230 

Treat  v.  Orono Ill 

Trelawny  v.  Coleman 202,-  204 

Tremper  v.  Barton 309 

Trenton  Banking  Co.  v.  Haverstick..  221 

Trenton,  eto.,  Co.  v.  Raff 148 

Trevor  v.  Wood 88,    89 

Tribble  v.  Frame 839 

Trimbey  v.  Vignier 130 

Tripp  V.  Frank 731 

Troost  V.  Davis 157 

Trotter  v.  Smith  467 

Troup  V.  Haight 198 

Trovinger  v .  McBurney 674 

Trowbridge  v.  Weir 430 

Troy  Academy  v.  Nelson 105,  388 

Troy  City  Bank  v.  Grant. , .  559,  626,  638 

Troy  City  Bank  v.  Lauman 625 

True  V.  Thomas 506 

Trueblood  v.  Trueblood 214 

Truesdell  v.  Booth 173 

Trueman  v.  Hurst 193 

Truman  v .  McCollum 696 

Truscot-t  V .  King 152 

Truslo w  V .  Putnam 424 

Trust  V.  Pirsaon 376 

Trustees  of  Watertown  v.  Co  wen  . . .  450 

Trustees,  etc.,  v.  Dickinson 713 

Trustees  v.  Gallatin 673 

Trustees  of  Newburg  v.  Galatian  . . .  278 

Trustees  v..  Garvey 105 

Trusteesof  Huntington  v.  Nicoll,  649,  650 
Trustees  of  Brookhaven  v.  Strong  . .   710 

Tryon  v.  Baker 406,  407 

Try  on  v.  Mooney 110 


TABLE  OF  CASES. 


xcv 


PAGE. 

Tryon  v.  Oxley 588 

Tuberville  v.  Savage 334 

Tubbs  V.  Van  Kleck 727 

Tucker  v.  Burrow 209 

Tucker  v.  Humphrey 529 

Tu cker  v .  Kenniston 6G9 

Tucker  v.  Madden 1G2 

Tucker  V.  Stokes 684 

Tucker  v.  Streetman 127 

Tucker  v.  Woods 87,  102 

Tucker  v.  Woolsey 228 

Tufts  V.  Hayes 686 

Tull  V.  David 480 

Tullay  V.  Reed 389 

Tuller  V.  Voght  288 

Tullis  V.  Sewell 387 

Turner  v.  Carutliers 457 

Turner  v.  Davis 492 

Turner  V.  Field 675 

Turner  v .  Fendall 423 

Turner  v .  Hadden 695 

Turner  v.  Jones 272 

Turrell  v .  Norman 737 

Turner  V.  Peck 731 

Turner  v.  Steam  Coal  Co 408 

Turner  v.  Turner 251 

Tutt  V.  Couzins 359,  363 

Tuttle  V.  Howe 360 

Tuttle  V.  Mayo 252 

Tuttle  V.  Standish 164,  165 

Tuxbury  v.  Miller 674 

Tweddle  v.  Atkinson 103 

Twyman  v.  Knowles 148 

Tyler  v.  Ames 289 

Tyler  v.  Barrows 356,  358 

Tyler  v    Freeman 478 

Tyler  v.  Hammond 709 

Tyler  v.  Parr 270 

Tyler  v.  Stevens 569,  599 

Tyler  v.  Taylor 217 

Tyson  v.  Lansing 415 

Tyson  v.  State  Bank 243 

Ubsdell  v.  Pierson 120 

Udall  V.  Kenney 95 

Udell  V.  Atherton 287 

Ublein  v.  Cromack 303,  320 

Underbill  v .  Gibson 239 

Underwood  v.  Brockman 85 

Underwood  v .  Dollins 675 

Underwood  v.  Hassack 97 

Underwood  v .  Swan 167 

Union  Bank  v.  Beirne 218 

Union  Bank  v.  Coster 584,  585 

Union  Bank  v.  Geary 441 

Union  Bank  v .  Govan 442 

Union  Bank  v .  Knapp 503 

Union  Bank  v.  Middlebrook 233 

Union  Bank,  etc.,  v.  Mott 223 

Union  Bank  v.  Osborne 165 

Union  Nat.  Bank  v.  Sixth  Nat. Bank,  518 

Union  Bank  v.  U.  S.  Bank 421 

Union  Bank  v.  Warren 166 

United  States  v.  Appleton 294,  296 

U.  S.  Bank  v.  Bank  of  Georgia 512 

United  States  v.  Bartle 339 


PAGE. 

United  States  v.  Brown 269,  685 

United  States  v.  Buchanan 129,  269 

United  States  v.  Buford 356,  368 

United  States  v.  City  Bank  of  Colum- 
bus    518,  519 

United  States  v.  Curry 463 

United  States  v.  Dugan 279 

United  States  v.  Fillebrown 269 

United  States  v.  Freeman 343 

United  States  v.  Grossmayer 215 

United  States  v.  Hand 332 

United  States  Exp.  Co.  v.  Haines. . .  274 

United  States  v.  Huckabee 45 

United  States  v.  Hunt 341 

United  States  v.  Linn 675 

United  States  v.  Little  Charles 682 

United  States  v.  Maurice 681 

United  States  v.  McDonald 269 

United  States  v.  Mitchel 685 

United  States  v.  Myers 332 

United  States  v.  Ortega 332,  335,  336 

United  States  v.  Porter 474 

LTuited  States  v.  Richardson 333 

United  States  v.  Russell 74,  383 

United  States  v.  Stevenson 414 

United  States  Ins.  Co.  v.  Shriver    . . .  233 

United  States  v.  Thompson 685 

United  States  v.  Tingey    693 

United  States  v.  White 541,  561,  563 

United  States  v.  Wolf 386 

United  States  v.  Wright *  693 

University  of  Vermont  v.  Buell 105 

Upton  V.  Archer 678 

Upton  V.  Suffolk  County  Mills 478 

Upton  V.  Wallace 3f  4 

Urquhart  v.  Mclver 276 

Utica  Ins.  Co.  v.  Toledo  Ins.  Co 247 

Utterson  v.  Mair 655,  658 

Vaden  v.  Hance 206 

Vail  V.  Jackson 442 

Vail  V.  Jersey  Little  Falls  Manuf.  Co.,  268 

Vail  V.  Mumford 387 

Valentine  v.  Piper 222 

Valentine  v.  Stewart 448 

Valentine  v.  Van  Wagner 168 

Van  Allen  v.  American  Bank 503 

Van  Aleu  v.  Vaiiderpool 223 

Van  Alstyne  v.  Nat. Commercial  Bank,  603 

Van  Amriuge  v.  Peabody 273 

Vanblaricum  v.  Yeo 675 

Van  Car  v.  Haslett 387 

Vance  v.  Bloomer 579 

Vance  v.  Huling 211 

Vance  v.  Monroe 177 

Van  Doren  v.  The  Mayor,  etc.,  of  N.T.,  667 

Van  Driel  v.  Rosierz 365 

Van  Dusen  v.  Hay  ward 684 

Van  Duvne  v.  Vreeland  ....    656 

Van  Duzer  v.  Howe 228,  286 

Vandenburgh  v.  Traax 147 

Vanderbilt    v.    Richmond     Turnpike 

Co 264,  266,  288 

Vandegrift  v.  Rediker 305 

Vandekarr  v.  Vandekarr 74 

Van  Etta  v.  Evenson 67S 


XCVl 


TABLE  OF  CASES. 


PAGE. 

Van  Epps  V.  Harrison 376 

Van  Epps  v.  Van  Epps 201,  246 

Van  Hagau  v.  Van  Rensselaer  . .      . .   123 

Van  Ploesen  v.  Van  Alstyne 59^ 

Vanliook  v.  Baruett 690 

Vanhoebergh  v.  Ilasbrouck 268 

Vanhouten  v.  Keilv 359 

Van  Kirk  v.  Wilds 412 

Van  Leiiven  v.  Lyke 304,  310 

Vannieter  v.  McFaddin 155 

Van  Pelt  V.  McU raw 141 

Van  Rensselaer  v.  Chadwick  . . .   181,  182 

Van  Rensselaer  v.  Gifford 182 

Van  Reimsdyck  v.  Kane 130 

Van  Staphorst  v.  Pearce 279 

Van  Steeuburgh  v.  Tobias 318 

Vansittart  v.  Taylor 50 

Vansittart  v.  Vansittart 699 

Van  Valkenburgh  v.  Smith 701 

Van  Valkenburgh  v.  Stupplebeen  . . .   608 

Van  Valkinburgli  v.  Watson 378 

Van  Vechten  v.  Pruyn 631 

Van  Wagner  v.  Teriett 550,  551 

Van  Wyck  v.  Bauer 414 

Varnum  v.  Martin 460 

Vassar  v.  Camp 86 

Vaughan  v.  Porter 125 

Vaughan  v.  Taff  Vale  Railway  Co. .  .   145 
Veazie  v.  Williams  . .  .   282,  288,  482,  483 

Veazie  Bank  v.  Winn 506,  619 

Vedder    v.    Superintendent,   etc.,    of 

Schenectady 262 

Veile  V.  Hoag 182 

Veneall  v.  Veness 723 

Vennum  v.  Gregory 271 

Verdin  v.  Robertson 89 

Verholf  v.  Van  Hourvenlengen  ....  201 

Vermilya  v.  Austin 17 

Verplauk  v.  Caines 658 

Very  v.  Levy 222 

Viahna  v.  Barclay 242,  256 

Vicars  v.  Wilcocks 149 

Vielie  v.  Osgood 113 

Village  of  Delhi  v.  Youmans 145 

Vilas  V.  Downer 451 

Villers  v.  Ball 292 

Vincent  v.  Rather 233 

Vincent  v.  Rogers ! 385 

Vincent  v.  Sliuehour 161,  162 

Vorhees  v.  Martin 45 

Vosburgh  v.  Thayer 191 

Vosburgh  v.  Welch 412 

Vose  V.  Cowdrey 157 

Vose  V.  Doian 679 

Voss  V.  Bachop 461 

Waddell  v.  Reddick 120 

Waddington  v.  Vredenbergh  . . .   489,  491 

492 

Wade  V.  Kalbfleisch 727 

Wadsworth  v.  Sherman 82 

Wadsworth  v.  Treat 345 

Wagner  v.  Baird 153 

Wails  V.  Cooper 155 

Wailing  v.  Toll 400 

Wainwright  v.  Read 477 


Wakefield  v.  Ross  718 

Wakefield  v.  Stedman 131 

W^akefield  Bank  v.  Truesdell 519 

Wakeman  v.  Dalley 139,  140 

Wakeman  v.  Hazelton 221,  241 

Wakeman  v.  Robinson  ....  160,  161,  337 

Walden  v.  Bolton 4:36 

Waldron  v.  Willard 361 

Walker  v.  Advocate,  etc 476 

Walker  v.  American  Nat.  Bank 458 

Walker  v.  Bank  of  State  of  N.  Y.,  625,  637 

Walker  v.  Bietry 452 

Walker  v.  Bradley 169 

Walker  v.  Brown 74 

Walker  v.  Cheever 175,  176 

Walker  v.  Constable 485 

Walker  v.  Devlin 719 

Walker  v.  Egbert 566 

Walker  v.  Fitts 146 

Walker  v.  Goodman 460 

Walker  v.  Goodrich 465 

Walker  v.  Gregory  674 

Walker  v.   Great   Western   Railway 

Co 226 

Walker  v.  Herring 486 

Walker  v.  Hill 169 

Walker  v.  Holmes 446 

Walker  v.  Johnson 366 

Walker  v.  Lyde 022 

Walker  v.  Palmer 246 

Walker  v.  Peav 663 

Walker  v.  Perkins 674 

Walker  v.  Russ 281 

Walker  v.  Rushbury 455 

Walker  v.  Sargeant 454 

Walker  v.  Squires 615 

Walker  v.  State  Bank  of  New  York,  251 

Walker  v.  Stetson 619 

Walker  v.  Swartwout 261 

Walker  v.  Tirrell 270 

Walls  V.  Bailey 129 

Wall  V.  Lee 343 

Wallace  v.  Agry 619 

Wallace  v.  Barker 425 

Wallace  v.  Bradshaw 243 

Wallace  v.  Morgan 266,  288 

Wallace  v.  State  Bank 501 

Waller  v.  Tate 365 

Waller  v.  Thomas 19 

Wallis  V.  Beauchamp 128 

Wallworth  v.  Holt 7 

Walmsley  v.   Acton 634 

Walmsley  v.  Child 164,  165 

Walmsley  v.  Robinson 722 

Walpole  V.  Bishop 461 

Walpole  V.  C;arlisle 445,  460 

Walrad  v.  Petrie 539,  540,  563 

Walradt  v.  Maynard 254,  443,  444 

Walrath  v.  Thompson 253 

Walsh  v.  Dart 619 

Walters  v.  Glata 303 

Walters  v.  Monroe 234 

Walter  v.  Ross 529 

Walter  v.  Walter 384 

Walton  v.  Dickerson 455 

Walton  V.  Sugg 463 


TABLE  OF  CASES. 


xcvu 


Waples  V.  Hastings 214 

Ward's  Appeal 679 

Ward  V.  Allen 622 

Ward  V.  Brown 308 

Ward  V.  Dewey 662,  667 

Ward  V.  Guant 217 

Ward  V.  Howard 414 

Ward  V.  Johnson 397 

Ward  V.  McKenzie 415 

Ward  V.  Morrison 370 

Ward  V.  Neal 295,  296 

Ward  V.  Smith 215 

Ward  V.  Ward 351 

Ward  V.  Warner 373 

Ward  V.  Weeks 39 

Warden  v.  Eden 490 

Warden  v.  Hughes 562 

Warden  v.  Burnham 390 

Warden  v.  Greer 531 

Warder  v.  Tucker 628 

Wardlaw  v.  Gray ...  166 

Wardrop  v.  Dunlop 283 

Warhus  v.  Bowery  Savings  Bank . . .  510 

Warlow  V.  Harrison 484,  485 

Ware  v.  Street    513,  573 

Waring  v.  Catawba  Co 392 

Waring  v.  Cheeseborough 702 

Waring  v.  Purcell 325 

Warington  v.  Wheatstone 533 

Warner  v .  Bennett 168 

Warner  v.  Campbell 92 

Warner  v.  Everett 418 

Warner  v.  Griswold 464 

Warner  v.  Martin 273 

Warner  V.  South  worth 713 

Warren  v.  Bennett 357 

Warren  v.  Hawkins 467 

Warren  v.  Jones 118 

Warren  v.  Lynch 574,  675 

Warren  v.  Mains 512 

Warren  v.  Merrifield 122 

Warren  v.  Ocean  Ins.  Co 219 

Warren  v.  Sprauge 447 

Warren  v.  State 334 

Warren  Bank  v.  Suffolk  Bank 499 

Warren  v.  Wheeler 119 

Warren  v.  Whitney 91 

Warring  v.  Richards 599 

Warring  v.  Yates 394 

Warwick  v.  Cooper 102 

Warwick  v.  Matlock 697 

Washburn  v.  Gould 122 

Washburn  v.  Mosely 686 

Washington  v.  Johnson 442 

Washington  v.  Triplett 619 

Washington  Ice  Co.  v.  Webster. .  83,    87 

89 

Wason  V.  Rowe 115 

Watchman  v.  Crook 380 

Waters  v.  Bristol 722 

Waters  v.  Brpwn 343,  347 

Waters  v.  Whittemore 430 

Waterbury  v.  Sinclair 590,  601 

Waterhouse  v.  Dorr 476 

Waterhouse  v.  Skinner 395 

Waterman  v.  Barratt 98 

M 


PAGE. 

Waterman  v.  Dutton 119 

Waterman  v.  Johnson 708,  712,  715 

Waterman  v.  Younger 177 

Watervliet  Bank  v.  White,  588,  597,  643 

Watkins  v.  Cousall 247 

Watkins  v.  Cranch 627 

Watkins  v.  Eames 105 

Watkins  v.  Maule 171 

Watkins  v.   Trustees  of    Richmond 

College 388 

Watrous  v.  Steel 338 

Watson  V.  Bennett 519 

Watson  V.  Blaine 380 

Watson  V.  Christie 347 

Watson  V.  Evans 540 

Watson  V.  Hopkins 225 

Watson  V.  Hunter 187 

Watson  V.  Knightley 563 

Watson  V.  Muirhead 445 

Watson  V.  Murray 176 

Watson  V.  Owens 569 

Watson  V.  Phoenix  Bank 244,  504 

Watson  V.  Pierpont 415 

Watson  V.  Randall i . .     97 

Watson  V.  Snaed 673 

Watson  V.  Stever 387,  406 

Watson  V.  Swann 233 

Watson  V.  Tarpley 620 

Wattson  V.  Thibou 41 

Watson  V.  Todd 425 

Watts  V.  Kinney 21 

Watt  V.  Conger 175 

Watt  V.  Mitchell 627 

Waugh  V.  Middleton 125 

Waydell  v.  Luer 570 

Wayland  v.  Mosely 521,  531 

Wayland  v.  Tucker 183 

Wayne  v.  Steamboat  General  Pike  . .   122 

Waynick  v.  Richmond 670 

Weakly  v.  Watkins 154 

Weart  v.  Hoagland 385 

Weathers  v.  Mudd 423 

Weaver's  Appeal 205,  209 

Weaver  v.  Bachert 723 

Weaver  v.  Barden 591 

Weaver  v.  Bentley 409 

Weaver  v.  Puryear 413 

Weaver  v.  Ward 160 

Webb  V.  Baird 453 

Webb  V.  Browning 451 

Webb  V.  Coonce    404 

Webb  V.  Jiggs 326 

Webb  V.  Ridgely 151 

Webb  V.  Portland  Manufacturing  Co.  148 

Webber  v.  Davis 360 

Weber  v.  Kingsland 129 

Webster  v.  Cobb 596 

Webster  v.  De  Tastet 252,  255 

Webster  v.  Ela 113 

Webster  v.  Orne 429 

Webster  v.  Pierce 241 

Webster  v.  Watts 343 

Weed  V.  Nutting 490 

Weed  V.  Panama  R.  R.  Co 265 

Weed  V.  Small 188 

Weedoa  v.  TimbreU 200 


xcvm 


TABLE  OF  CASES. 


•PAGB. 

Weeks  V.  Fox 236 

Weeks  v.  Lawrence 491 

Weeks  v.  Pryor 640 

Weigand  v.  Sichel 406,  408 

Weile  V.  United  States 290 

Weimer  v.  Sloane 445 

Weir  V.  Weir's  Adm'r 108 

Weiss  V.  Mauch  Chunk,  etc.,  R.R.  Co.  385 

Weisse  v.  New  Orleans 438 

Weisser  v.  Dennison 508,  643 

Weisser  v.  Maitland 127 

Weitner  v.  Delaware,  etc.,  Co 738 

Welch  V.  Bagg 407 

Welsh  V.  Carter 616 

Welch  V.  Durand 160 

Welch  V.  Mandeville 356,  360 

Welch  V.  Sage 689 

Weld  V.  Gorham 500 

Weld  V.  Lancaster 483 

Welder  v.  Hunt.' 714 

Weldon  v.  Harlem  R.  R.  Co 309 

Weller  v.  Smeaton 652 

Wellerv.  St.  Paul 666 

Wells  V.  Brigham 398,  538 

Wells  V.  Foster 361 

Wells  V.  Hatch 454,  463 

Wells  V.  Mann 109 

Wells  V.  Whitehead 560 

Wells  V.  Williams 672 

Welton  V.  Adams 166 

Welton  V.  Divine 208 

Wendell  v.  Van  Rensselaer 467 

Wenman  v.  Mohawk  Ins.  Co 640 

Wentworth  v.  Day 275 

Werk  V.  Mad  River  Bank 619 

Wescott  V.  Potter 99,  359 

West  V.  Forrest 346 

West  V.  Hosea 93 

West  V .  Houston  . . 457 

West  V.  Jones 261 

West  V.  Shaw 714 

West  V.  St.  Louis  K.  C.  and  N.  Rail- 
way Co 720 

West  Covington  v.  Freking 708 

West  Roxbury  v.  Stoddard 712 

West  River  Bank  v.  Taylor 630 

Western  Penn.  R.  R.  Co.  v.  Childs,  737 
Western  Transportation  Co.  of  Buf- 
falo V .  Lansing   113 

Western    Counties    Manure   Co.   v. 

Lawes  Chemical  Co 7,  17,  28,  140 

Western  Trans.  Co.  v.  Marshall  ....  526 
Western  Union  Tel.  Co.  v.  Quinn  . .  308 

Western  v .  Sharp 385 

Western  Bank  v.  Sherwood 697 

Weston  V.  Barker Ill,  577 

Westfall  V.  Braley 573 

Westfield  Bank  v.  Cornen 232 

Westminster  College  v.  Gamble 105 

Wethey  v .  Andrews 640 

Wetherbee  v.  Dunn 720 

Wetherbee  v.  Ezekiel 468 

Wetmore  v .  Law 709 

Wetmore  v.  Wells 724 

Wexel  V .  Cameron 555 

Wharton  V.  Walker 5C6 


PAGE. 

Whatman  v.  Pearson 264 

Wheat  V.  Cross 86 

Wheaton  v.  Wheaton 84 

Wheatley  v.  Harris 299,  303 

Wheatley  v.  Williams 472 

Wheeler  v.  Brandt 318,  314 

Wheeler  v.  Knaggs 512 

Wheeler  v .  Patterson 148 

Wheeler  v.  Spinola 712,  713 

Wheeler  v.  Warner 559.  640 

Wheeler  v.  Wheeler ^. . .  360,  482 

Wheeler  v.  Willard 467 

Wheelock  v.  Wheelock 399 

Whelan  v.  Edwards 104 

Whelan  v.  Sullivan 113 

Wheelwright  v.  Moore 393 

Whipple  v.  Walpole 733 

Whistler  V.  Foster 586 

Whitaker  v .  Bank  of  England 505 

Whitcomb  v.  Wolcott    723 

White  V.  Banks 183 

White  V .  Bishop  of  Peterborough . . .  658 

660 

White  V.  Bluett 95 

White  V.  Brown 586,  590 

White  V.  Buck 358 

White's  Case 475 

White  V.  CampbeU 192,  194 

White  V.  Clapp 491,  492 

White  V.  Corlies 83 

White  V.  Godfrey 709 

White  V.  Hampton 175,  194 

White  V.  Hoffaker 447 

White  V.  Madison 257,  258 

White  V.  Merritt 139 

White  V.  Osborn 217 

Whites  V.Polk 118 

White  V.  Roberts 452 

White  V.  Smith 125, 126,  290 

White  V.  Springfield  Bank,  591,  611,  613 

White  V.  Tucker 368 

White  V.  Van  Horn 124 

White  V.  Van  Kirk 531 

White  V.  Vermont  &  Massachusetts 

Railroad  Co 688 

White  V.  Ward 249,  250 

Whitefield  v.  Longfellow 671 

Whitenall  v.  Morse 394,  395 

Whitehead  v.  Anderson 528 

Whitehead  v.  Potter 102,  280 

Whitehead  v.  Tuckett 216 

Whitehouse  v.  Liverpool  Gas  Co 120 

Whitehouse  v.  Moore 229 

Whitehurst  v.  Boyd 123 

Whitbeck  v.  Van  Ness 568 

Whitfield  V.  Faussat 162,  164 

Whiting  V.  Barney 469,  470 

Whiting  V.  Sullivan 386 

Whitman  V.  Keith 415 

Whitmore  v.  Woodward 372 

Whitney  v.  Buckman 857 

Whitney  v.  Dutch 214 

Whitney  V.  Holmes 719 

Whitney  v.  Merchant  Union  Express 

Co 243 

Whitney  v.  Slayton 674,  686 


TABLE  OF  CASES. 


XCIX 


PAGE. 

Whitney  v.  Snider 566 

Whitney  v.  Stearns 90 

Whitted  V.  Governor 685 

Whitten  v.  Whitten 208,  209 

Whittingham  v.  Ideson 299,  304 

Whittle  V.  Skinner 94 

Whittlesy  v.  McMahon 872 

Whitsell  V.  Mebane 679 

Whitsell  V.  Womack 680 

Whitwell  V.  Johnson 499 

Whitworth  v.  Tilman 110 

Wickes  V.  Adirondack  Co 567 

Widner  v.  Lane 233 

Wieland  v.  White 434 

Wiffinv.  Kincaid 336 

Wigg  V.  Simonton 449 

Wiggins  V.  Burkham 194 

Wiggins  V.  Hathaway 267 

Wigley  V.  Blackwal 703 

Wightman  v.  Coats 722 

Wilbour  V.  Gilmore 409 

Wilbour  V.  Turner 562,  586 

Wilbur  V.  Hubbard 319 

Wilburn  v.  Larkin 237 

Wilcox  V.Hunt 130 

Wilcox  V.  Jackson 45 

Wild  Cat  Branch  v.  Ball 678,  679 

Wild  V.  Blanchard 425 

Wild  V.  Harris 725 

Wilde  V.  Jenkins 196 

Wilder  V.  Cowles 257 

Wilder  v.  Keeler 850,  351 

Wilder  v.  Seelye 639 

Wilder  v.  Sprauge 552 

Wiley  v.  Moore 678 

Wiley  V.  Sledge 419 

Wiley  V.  Traiwick 428 

Wilford  V.  Berkeley 203 

Wilksv.  Back 237 

Wilkes  V.  Ellis 476 

Wilkins  v.  Jadis 620 

Wilkinson  v.  Campbell 480 

Wilkinson  v.  Griswold 266,  465 

Wilkinson  v.  Lutridge 601 

Wilkinson  v.  Parrott 316 

Wilkinson  v.  Scott 380 

Wilkinson  v.  Vorce 447 

Willard  v.  Bridge 392 

Willard  v.  Germer 569 

Willard  v.  Goodrich 441 

Willard  v.  Stone 102 

Willard  v.  Tillman 356 

Willard  V.  Warren 60 

Willets  v.  Phoenix  Bank,  507,542,561,  624 
Willetts  V.   Sun    Mutual    Insurance 

Co 71,  103 

Willet  V.  Willet 405,  406 

Willey  V.  State 682 

Williams  v.  Alexander 98 

Williams   v.    Bank    of    the    United 

States 704 

Williams  v.  Benton 471 

Williams  V.  Branch  Bank 328 

Williams  v.  Bricknell 89 

Williams  v.  Butler 458 

Williams  V.  Cummington 731 


PAGB. 

Williams  College  v,  Danforth 105 

Williams  v.  Dixon 321 

Williams  v.  Gage 411 

Williams  v.  Gibbs 460 

Williams  v.  Glenny 192 

Williams  v.  Henshaw 379 

Williams  v.  Higgins 242,  251 

Williams  v.  Hunter 426 

Williams  v.  Inabnet 671,  677 

Williams  v.  Jones 336 

Williams  v.  Matthews 595,  597 

Williams  v.  Mears 210 

Williams  v.  Merritt 234 

Williams  v.  Miller 108 

Williams  v.  Millington 488 

Williams  v.  Otey 328 

Williams  v.  Poor 480 

Williams  v.  Powell 95 

Williams  v.  Reed 435 

Williams  v.  Bobbins 257 

Williams  v.  Saunders 420 

Williams  v.  Shackelford 232,  243 

Williams  v.  Shelby 684 

Williams  v.  Stonestreet 211 

Williams  v.  Storm 220,  234 

Williams  v.  SuflFolk  Insurance  Co. . . .  184 
Williams  V.  Turnpike  Corporation..  732 

Williams  v.  Vines 398 

Williams  v.  Cochran 229 

Williams  v.  Walker 283 

Williams  v.  Waters 115 

Williams  v.  Williams 201 

Williams  v.  Winans 592,  622 

Williams  v.  Woods 236,  243 

Williams  v.  Beck 421 

Williamson  v.  McClure 123,  126 

Williamson  v.  Morton 328 

Willis  V.  Bernard 202 

Willis  V.  Green 621,  636,  648 

Willis  V.  Hobson 108 

Willis  V.  Vallette 232 

Wilmerdings  v.  Fowler 449,  462 

Willmont  v.  Meserole 446 

Wilmouth  v.  Patten 119 

Willoughby  v.  Moulton 555 

Wills  V.  Kane 453 

Wills  V.  Noyes 428 

Wilson  V.  Anthony 153 

Wilson  V.  Baptist  Education  Society,  112 

Wilson  V.  Beauchamp 210 

Wilson  V.  Bigger 671 

Wilson  V.  Bowden 364 

Wilson  V.  Britton 418 

Wilson  V.  Campbell 677 

Wilson  V.  City  of  New  Bedford 161 

Wilson  V.  Danforth 421 

Wilson  V.  Davisson 329 

Wilson  V.  Doster 328 

Wilson  V.  Goit 39,  149 

Wilson  V.  Greer 391 

Wilson  V.  Guyton 275 

Wilson  V.  Hudson 719 

Wilson  V.  Ireland 680 

Wilson  V.  Mallett 179 

Wilson  V.  Martin 274 

WilBon  T.  Middleton 346 


TABLE  OF  CASES. 


PAQB. 

"Wilson  V.  Outlaw 426 

Wilson  V.  Paul 350 

Wilson  V.  Railroad  Company 304 

Wilson  V.  Root 427 

Wilson  V.  Russ 445 

Wilson  V.  Smith 444 

Wilson  V.  Tumman 233 

Wilson  V.  Wadleigh 442 

Wilson  V.  Watson 490 

Wilson  V.  Wilson,  189,  195,  242,  413,  405 

Wilt  V.  Ogden 400 

Wilts  and  Berks  Canal  Navigation  Co. 

V.  Swindon  Water  Works  Co 148 

Wilton  V.  Webster 199,  202,  204 

Winchell  v.  Noyes 406 

Winchester  v.  Howard 281 

Wingate  v.  Mechanics'  Bank. ......  517 

Wings  V.  Brown 374,  394 

Winnebinner  v.  Weisiger 674 

Winslow  V.  King 709 

Winslow  V.  Norton 529 

Winslow  V.  Wood 701 

Winsmore  v.  Greenback 140,  202 

Winsor  v.  Griggs 259 

Winston  v.  Francisco 374 

Winston  v.  Street 198 

Winstone  v.  Linn 342 

Winter  v.  Coit 274,  275 

Winter  v.  Drury 622 

Winter  v.  Henn 200,  204 

Winter  v.  Stevens 60 

Winthrop  v.  Dockendorff 684 

Winton  v.  Meeker 401 

Wires  v.  Briggs 450 

Wise  V.  Decker 387 

Wisconsin,  etc.,  Co.  v.  Lyons 730 

Withers  v.  State 434 

Withers  v.  Yeadon 171 

Witherow  v.  Keller 493 

Withington  v.  Herring 228 

Witte  V.  Vincenot 510 

Witter  V.  Arnett 152 

Woburn  v.  Henshaw 471 

Woder  V.  Powell 438 

Wofford  V.  Board  of  Police,  etc 663 

Wolcott  V.  Van  Santvoord. .  559,  626,  635 

Wolf  V.  Chalker 299 

Wolfe  V.  Luyster 480,  484 

Wolfe  V.  Myers 521,  522,  523,  531 

Wood  V.  Anders 454 

Wood  V.  Gee 378 

Wood  V.  Goodridge 238 

Wood  V.  Kelly 712 

Wood  V.  La  Rue 322 

Wood  V.  Leadbitter 340 

Wood  V.  Merchants'  Savings,  etc.,  Co.,  509 

Wood  v.  Monroe 663 

Wood  V.  Ogden 681 

Wood  V.  Partridge 362 

Wood  V.  Perry 368 

Woods  V.  Schroeder 398 

Wood  V.  Seely 667 

Wood  V.  Washburn 677 

Wood  V.  Weir 428 

Wood  V.  Willis 670 

Wood  v.  Wood 201,  825,  655,  660 


PAGE. 

Woodbury  v.  Blair 257,  260 

Woodbury  v.  Laund 234,  283 

Woodford  v.  Darwin 556 

Woodhouse  v.  Shepley 723 

Woodin  v.  Foster 644 

Woodin  v.  Frazee 506,  619 

Woodman  v.  Churchill 608 

Woodman  v.  Eastman 627 

Woodruff  v.    Commercial   Mut.  Ins. 

Co 127 

Woodruff  v.  McGehee 283 

Woodrufl  V.  Woodruff 334 

Woodson  V.  Moody 394 

Woodward  v.  Genet 543 

Woodward  v.  Suydam 271 

Woodward  v.  Webb 266 

Woodworth  v.  Bank  of  America  ....  620 

638 

Woodworth  v.  Sweet 214 

Woody  V.  Flournoy 392 

Wolf  V.  Chalker 312,  320 

Woolery  v.  Woolery 209 

Wooster  v.  Van  Vechten 734 

Wooten  V.  Hinkle 482,  483 

Wooten  V.  Reed 389 

Worcester  v.  Essex  Merrimac  Bridge,  734 

Worcester  Turnpike  v.  Willard 388 

Worden  v.  Dodge 552 

Wormley  v.  Gregg 312 

Wormley  v.  Wormley 330 

Worrauck  v.  Rogers 95 

Worrall  v.  Muhu 218,  219,  234 

Worster    v.    Proprietors     of     Canal 

Bridge 337 

Worth  V.  Gilling 312,  313,  315 

Worthen  v.  Stevens 386 

Worthy  v.  Tate 164 

Wray  v.  Tuskegee  Ins.  Co 502 

Wren  v.  Kirton 659 

Wright  V.  Bartlett 93 

Wright  V.  Black 449 

Wright  V.  Burbank 220 

Wright  V.  Calhoun 267 

Wright  V.  Cobleigh 401 

Wright  V.  Court 336 

Wright  V.  Daily 435 

Wright  V.  Deklyne 477 

Wright  V.  Eaton 264,  265 

Wright  V.  Garlinghouse  . . .  545,  617,  618 

Wright  V.  Maxwell 119 

Wright  V.  Nagle 730 

Wright  V.  Parks 438 

Wright  V.  Simpson 657 

Wright  V.  State 451,  453 

Wright  V.  Wright  ....  165,  166,  603,  604 

Wroe  V.  Washington 404 

Wyant  v.  Lesher 683 

Wyche  v.  Macklin 702 

Wyckoff  V.  Bergen 441 

Wyman  v.  Gray 239 

Wyraan  v.  Smith 390 

Wyndham  v.  Lord  Wycombe 201 

Wynkoop  v.  Seal 271 

Wynn  v.  Alden 633 

Wynne  v.  Governor 678 

Wynne  v.  Lord  Nswborough. ........  669 


TABLE  OF  CASES. 


ci 


PAGE. 

Tale  V.  Flanders 684 

Tale  V.  Rex 685 

Tale  V.  Tappan 290 

Tarborough  v.  Abernathy 719 

Tarborough  v.  Bank  of  England 594 

Tardly  v.  Ellill 448 

Tare  v.  Harrison 661 

Tates  V.  Boen 671 

Tates  V.  Joyce 141 

Tates  V.  Lansing .•  147 

Tates  V.  Olmstead 468 

Tates  V.  Nash 539,  551 

Tates  V.  Van  De  Bogart 711,  714,  716 

Teatman  v.  Corder 272 

Tel  verton  v.  Burton 423 

Tingling  v.  Cohass 562 

Tocum  V.  Smith 558 

Tork  Bank  v.  Appleton 439 

Tordon  v.  Hess 471 

Toung  V.  Adams 573 

Toung  V.  Black 400 


PAGB. 

Toung  V.  C!ollet 489,  493 

Toung's  Estate ...  212 

Toung  V.  Hays 389 

Toung  V.  Hickens 40,  302 

Toungs  V.  Lee  ...   611,  644 

Toung  V.  Mackall 378 

Toung  V.  Marshall 405 

Toung  V.  Noble 517,  518 

Toung  V.  Rummell 400 

Toungs  V.  Stahelin 569 

Toungblood  v.  Norton 205 

Tounger  v.  Skinner 665 

Tourt  V.  Hopkins 477,  478 

Tundt's  Appeal 205,  210,  212 

Tundt  V.  Roberts 700 

Zabriskie  v.  Smith 361 

Zachery  v.  Brown 697 

Zerger  v.  Sailor 4 394 

Zetelle  v.  Myers 179 

Zimmerman  v.  Zimmerman 402 


PART    I  . 

OF  ACTIONS  AND  DEFENSES. 

m  WHICH  THEY  ARE  CONSIDERED  GENERALLY,  AND 
IN  THEIR  RELATIONS  TO  REMEDIES,  WHETHER  OF 
A  LEGAL,  OR  OF  AN  EQUITABLE  NATURE;  OR 
WHETHER  FOUNDED  UPON  CONTRACTS,  OR  UPON 
TORTS ;   UPON  LEGAL  DUTIES,-  OR   UPON  EQUITIES. 


CHAPTER  I. 

OF   RIGHTS  AND   REMEDIES,  AND  OF  THE  NATURE 

OF  ACTIONS. 


TITLE  I. 

OF  CONTRACTS  AND  OF  TORTS. 

ARTICLE  I. 

OF   EIGHTS  OF  PERSON  AND   OF  PROPEETY  IN   GENERAL. 

Section  1.  Some  general  considerations.  Every  person  has  an 
interest  in  the  laws  and  the  remedies  which  exist  for  the  protec- 
tion of  person,  and  of  property.  The  rights  of  natural  persons 
are  either  absolute^  and  such  as  relate  to  life,  limb,  liberty, 
health,  or  reputation  ;  or,  they  are  relative,  and  such  as  pertain 
to  the  relations  of  husband  and  wife,  parent  and  child,  guardian 
and  ward,  or  master  and  servant,  and  the  like  instances. 

There  are  also  rights  of  artificial  persons,  such  as  corporations, 
joint-stock  companies,  or  other  similar  organizations. 

In  addition  to  those  just  mentioned,  there  are  rights  of  prop- 
erty, whether  it  be  of  a  corporeal,  or  of  an  incorporeal  nature; 
and  whether  it  consists  of  real,  or  of  personal  property. 

The  rights  of  persons  are  generally  considered  as  the  gift  of 
God;  and,  are  regarded  as  inalienable,  unless  they  are  forfeited 
by  some  act  of  the  person,  in  violation  of  the  laws  under  which 


2  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

he  lives;  or,  unless  lie  voluntarily  consents  to  some  act,  or  enters 
into  some  contract,  or  relation,  which  affects,  changes,  or  de- 
prives him  of  the  right  to  insist  upon  them ;  or,  in  other  words, 
unless  he  binds  himself  by  contract  to  do,  or  to  omit  some  act 
or  thing;  or  estops  himself  from  claiming  and  insisting  upon 
such  natural  rights. 

In  declaring,  defining,  and  securing  these  rights  of  person,  and 
of  property,  the  talents,  time,  and  labor,  of  the  ablest  and  best 
men  have  been  employed.  The  Constitution  of  the  United 
States ;  and,  the  Constitutions  of  the  several  States,  all  furnish 
the  most  clear  and  conclusive  proof  of  the  wisdom  and  justice 
of  the  plan,  and  of  the  deep  and  permanent  interest  which  has 
been  felt  and  exhibited  by  every  class  of  citizens,  in  every  part 
of  the  Union.  In  addition  to  these  constitutional  guarantees, 
there  are  extensive  systems  of  statutes  relating  to  the  same 
rights.  There  are  statutes  of  the  United  States,  as  well  as  those 
of  every  State,  which  have  for  their  object,  the  security  of  rights, 
and  the  redress  of  wrongs;  and,  they  are  intended  to  provide 
for  the  protection  of  every  right,  and  the  redress  of  every  wrong, 
so  far  as  that  can  be  accomplished  by  human  laws,  whether  writ- 
ten or  unwritten. 

It  may  be  said,  generally,  that  all  civil  actions  are  founded 
upon  some  act,  or  some  omission  in  regard  to  private  rights  or 
duties,  in  relation  to  person  or  to  property.  So,  too,  it  may  be 
said,  in  a  general  way,  that  acts  or  omissions  are  actionable,  or 
not  actionable,  according  to  the  circumstances  under  which  they 
take  place.  The  act  of  loading  and  discharging  a  gun  or  a  pis- 
tol, may  be,  of  itself,  an  innocent  and  lawful  act ;  and  it  may 
sometimes  be  an  actual  duty,  as  in  the  case  of  a  soldier  engaged 
in  battle.  But,  the  act  of  discharging  a  gun  or  a  pistol  in  a  pub- 
lic street,  in  a  large  city,  where  serious  injury  may  result  from 
the  act,  and  where  such  act  is  in  violation  of  a  general  law,  or  of 
some  valid  ordinance  of  the  city,  may  be  unlawful,  and  action- 
able under  the  circumstances  of  the  case.  Again,  it  is  presump- 
tively unlawful  for  one  person  to  injure  or  to  kill  another,  and 
yet  the  act  when  done  in  necessary  defense  of  life  may  be  lawful 
and  justifiable;  and  in  some  extraordinary  cases,  the  act  may  be 
not  merely  lawful,  but  may  be  considered  a  duty  imposed  by 
the  law,  as  where  a  soldier  in  battle  kills  an  enemy,  or  a  sheriff 
executes  a  murderer  in  pursuance  of  the  sentence  of  the  law  and 
of  the  court. 

The  motives  with  which  an  act  is  done  is  sometimes  made  the 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  3 

test  whether  the  act  is  actionable;  and  at  other  times  the  motive 
merely  affects  the  question  of  damages;  and  in  still  other  cases, 
the  motive,  however  bad  it  may  be,  does  not  give  a  right  of 
action  for  doing  what  is  clearly  a  lawful  act.  Words  spoken, 
may  be  actionable  or  otherwise,  according  to  the  circumstances 
and  the  motives  which  call  for  or  prompted  their  utterance.  A 
witness  in  a  cause,  counsel  in  the  trial  of  an  action,  or  a  person 
called  upon  as  to  the  character  of  a  servant,  may  honestly  and 
fairly  discharge  the  duties  imposed  by  the  situation  in  which  he 
is  placed,  without  liability  to  an  action;  while  the  same  words  if 
uttered  without  cause,  under  circumstances  which  did  not  call 
upon  the  party  to  speak,  and  especially,  if  maliciously  uttered, 
may  subject  the  speaker  to  an  action.  There  may  be  acts  too, 
which  are  done  from  humane  and  good  motives,  but  they  are  in 
violation  of  the  legal  rights  of  another,  and  are  therefore 
actionable.  One  man  cannot  lawfully  punish  another  man's 
child,  merely  because  he  richly  deserves  it;  and  the  cases  are 
very  numerous  upon  the  point  that  honest  or  good  motives  are  no 
justification  for  an  unlawful  act.  So,  too,  the  cases  are  numer- 
ous that  a  lawful  act  does  not  furnish  a  ground  of  action,  how- 
ever bad  or  malicious  the  motive  which  prompted  the  act.  This 
whole  subject  will  be  fully  illustrated  under  the  title  Injuries  not 
Actionable. 

In  a  work  like  the  present,  it  is  not  possible  to  discuss  all  the 
important  and  various  questions  which  relate  to  rights  and 
remedies,  either  as  to  person  or  as  to  property  ;  and,  therefore, 
for  the  purpose  of  a  convenient  division  of  the  subject,  the  work 
will  be  limited  to  those  rights,  duties,  or  liabilities,  which  are 
founded  upon  contracts,  upon  torts,  upon  legal  duties,  or  upon 
equities. 

§  2.  Of  contracts  in  general.  In  relation  to  the  importance 
of  a  knowledge  of  the  law  of  contracts,  no  proof  or  argu- 
ment will  be  required,  since  its  value  is  seen,  and  its  neces- 
sity felt,  in  all  the  business  transactions  of  life.  In  the  inter- 
course among  men,  there  are  buyers  and  sellers,  lenders  and 
borrowers,  employers  and  employed  ;  those  who  let,  and  those 
who  hire  ;  those  who  insure,  and  those  who  are  insured  ;  and, 
yet,  these  are  but  a  few  of  the  illustrations  of  the  extent  and 
variety  of  contracts,  express  or  implied.  In  all  such  cases,  it 
is  unwise  and  unsafe  to  contract  obligations,  or  to  incur  liabili- 
ties, of  the  nature  or  extent  of  which  the  contracting  party  is 
entirely  ignorant,  or,  at  best,  but  partially  informed.    To  aid  in 


4  OF  RIGHTS.  REMEDIES  AND  ACTIONS. 

the  acquisition  of  a  competent  general  knowledge  of  the  subject, 
is  the  object  of  the  present  work. 

The  law  of  contracts  is  a  universal  one,  which  is  adapted  to 
all  times  and  all  civilized  races,  and  to  all  places  and  circum- 
stances, because  it  is  founded  upon  those  great  and  fundamental 
principles  of  right  and  wrong,  which  are  immutable  and  eternal, 
and  which  present  a  striking  uniformity  among  all  nations, 
whatever  seas  or  mountains  may  separate  them,  or  however 
many  ages  may  have  elapsed  between  the  periods  of  their  exist- 
ence. The  law  of  contracts  may  very  properly  be  regarded  as 
one  of  the  foundations  of  human  society.  Every  phase  of  social 
life  assumes  its  existence  ;  for  out  of  contracts,  express  or 
implied,  grow  many,  if  not  most,  of  the  rights,  duties  and  obli- 
gations of  persons  toward  each  other.  The  law  of  contracts  is, 
therefore,  important,  from  its  declaring  and  defining  the  rights 
and  duties  which  arise  from  contracts.  But  it  is  chiefly  valuable 
for  the  means  or  power  which  it  furnishes,  with  the  aid  of  the 
courts,  for  the  enforcement  of  contracts  ;  or  the  securing  of  the 
remedies  which  are  given  by  law  for  a  breach  of  them. 

§  3.  Of  torts  in  general.  Torts  may,  and  frequently  do, 
occur,  independently  of  any  contract ;  but  they  may  also  be 
founded  upon  or  grow  out  of  some  violation  of  a  right  created 
or  secured  by  contract.  Torts  are  as  numerous  and  as  various,  as 
the  ingenuity,  the  experience  or  the  malice  of  mankind  can 
devise,  or  carry  into  effect.  And  for  this  reason,  the  law  does 
not  limit  the  remedies  which  may  be  employed  for  the  protection 
of  rights,  or  the  redress  of  wrongs.  To  show  this  in  the  strong- 
est and  clearest  light,  it  is  only  necessary  to  refer  to  the  maxim, 
^^Uhijusihi  remedium^''''  or  "There  is  no  wrong  without  a 
remedy,"  Broom's  Leg.  Max.  191;  and  in  the  course  of  this 
work  numerous  illustrations  will  be  furnished.  And  since  torts 
are  infinitely  various,  it  would  be  an  endless  task,  as  well  as  a 
useless  effort,  to  attempt  an  enumeration,  or  a  description  of  all 
the  wrongs  of  which  the  law  takes  cognizance,  and  for  which 
redress  is  afforded  by  restraint  or  prevention,  or  by  compensa- 
tion in  damages  for  the  injury  sustained.  It  is  sufficient  to  say 
that  injuries  and  wrongs  are  constantly  occurring,  and  that  civil 
actions  for  their  redress  are  numerous  enough  to  occupy  a  fair 
share  of  the  attention  of  the  legal  profession  and  of  the  courts. 
The  inj  uries  referred  to  are  such  as  relate  to  person  or  to  property, 
in  whatever  manner  such  injury  may  occur.  Every  wrongful 
invasion  of  a  legal  right,  such  as  the  right  to  security  of  person, 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  5 

the  rights  of  property,  or  the  rights  incident  to  the  possession 
of  property  is,  in  law,  an  actionable  tort ;  and  so  of  every  neglect 
of  a  legal  duty,  and  of  every  wrongful  injury  to  the  person,  or 
character  of  another  The  law  of  torts  or  civil  wrongs,  there- 
fore, having  for  its  object  the  security  of  our  persons,  and  char- 
acter, and  the  protection  of  our  property,  is  a  branch  of  the  law 
of  general  interest  and  importance,  and  there  are  few  persons  to 
whom  some  knowledge  of  it  does  not  become  essential,  at  some 
time,  for  the  purpose  of  securing  or  protecting  themselves  in  their 
just  and  lawful  rights,  or  for  the  purpose  of  ascertaining  the 
nature  and  extent  of  their  legal  duties  or  responsibilities. 

The  table  of  contents,  and  the  index  will  furnish  a  reference  to 
the  numerous  instances  in  which  actionable  torts  are  discussed 
in  this  work.  In  continuation  of  the  matter  in  hand,  the  next 
subject  for  consideration  will  be  the  nature  of  the  common  law, 
and  of  equities,  as  well  as  the  discussion  of  some  of  the  general 
principles  relating  to  actions  or  defenses. 


TITLE  II. 

OF  THE  NATUKE  OF  ACTIONS. 

ARTICLE  I. 

OF   THE   KECESSITY   FOR   ACTIONS,   AND    OF   THEIR   ORIGIN. 

Section  1.  Of  laws ;  their  nature  and  objects.  In  every  con- 
dition of  civilized  society  there  must  be  some  customs,  rules,  or 
principles,  by  which  rights  may  be  investigated,  duties  or 
liabilities  declared,  controversies  determined,  and  remedies  en- 
forced. 

Among  the  advantages  to  be  derived  from  entering  into  society 
are  those  of  protection  of  person,  and  the  security  of  property ; 
and,  therefore,  men  have  a  right,  and  they  are  in  some  degree 
compelled,  to  apply  to  the  public  authorities  for  redress  when 
rights  are  withheld,  or  injuries  have  been  committed. 

The  natural  right  of  individuals  to  redress  wrongs,  or  to  take 
the  law  into  their  own  hands,  cannot  exist  in  a  well -organized 
state  of  society,  except  in  a  few  instances  ;  and  the  general  rule 
is,  that  all  rights  must  be  declared,  and  all  remedies  enforced  by 
the  proper  tribunals  in  accordance  with  settled  principles  and 
the  forms  of  law. 


6  OF  EIGHTS,  EEMEDIES  AND  ACTIONS. 

The  elements  or  principles  of  a  system  of  laws  may  be  com- 
paratively simple  in  form,  and  few  in  number,  when  considered 
with  reference  to  their  origin  in  an  early  stage  of  society  ;  but.  as 
the  wants  of  society  increase,  the  system  will  expand  until  it 
extends  to  and  includes  every  case  which,  according  to  justice, 
and  the  public  interest,  requires  consideration. 

It  is  one  of  the  great  merits  and  advantages  of  the  common  law, 
that,  instead  of  a  series  of  detailed  practical  rules,  established  by 
positive  provisions,  and  adapted  to  the  precise  circumstances  of 
particular  cases,  which  would  become  obsolete  and  fail,  when  the 
practice  and  course  of  business,  to  which  they  apply,  should 
cease  or  change,  the  common  law  consists  of  a  few  broad  and 
comprehensive  principles,  founded  on  reason,  natural  justice, 
and  enlightened  public  policy,  modified  and  adapted  to  the  cir- 
cumstances of  all  the  particular  cases  which  fall  within  it.  These 
general  principles  of  equity  and  policy  are  rendered  precise,  , 
•specific,  and  adapted  to  practical  use,  by  usage,  which  is  the 
proof  of  their  general  fitness  and  common  convenience,  but  still 
more  so  by  judicial  exposition ;  so  that,  when,  in  a  course  of 
judicial  proceeding,  by  tribunals  of  the  highest  authority,  the 
general  rule  has  been  modified,  limited  and  applied,  according 
to  particular  cases,  such  judicial  exposition,  when  well  settled 
and  acquiesced  in,  becomes  itself  a  precedent,  and  forms  a  rule 
of  law  for  future  cases,  under  like  circumstances. 

The  effect  of  this  expansive  and  comprehensive  character  of 
the  common  law  is,  that  while  it  has  its  foundations  in  the  prin- 
ciples of  equity,  natural  justice,  and  that  general  convenience 
which  is  public  policy  ;  although  these  general  considerations 
would  be  too  vague  and  uncertain  for  practical  purposes,  in  the 
various  and  complicated  cases,  of  daily  occurrence,  in  the  business 
of  an  active  community  ;  yet  the  rules  of  the  common  law,  so  far 
as  cases  have  arisen,  and  practices  actually  grown  up,  are  ren- 
dered,in  a  good  degree,  precise  and  certain,  for  practical  purposes, 
by  usage  and  judicial  precedent.  Another  consequence  of  this 
expansive  charticter  of  the  common  law  is,  that  when  new  prac- 
tices spring  up,  new  combinations  of  facts  arise,  and  cases  are 
presented  for  which  there  is  no  precedent  in  judicial  decision, 
they  must  be  governed  by  the  general  principle,  applicable  to 
cases  most  nearly  analogous,  but  modified  and  adapted  to  new 
circumstances,  by  considerations  of  fitness  and  propriety,  of 
reason  and  justice,  whicli  grow  out  of  those  circumstances. 

The  consequence  of  this  state  of  the  law  is,  that,  when  a  new 


OF  RIGHTS,  REMEDIES. AND  ACTIONS.  7 

practice  or  a  new  course  of  business  arises,  the  rights  and  duties 
of  parties  are  not  without  a  law  to  govern  them  ;  the  general  con- 
siderations of  reason,  justice,  and  j)olicy,  which  underlie  the  par- 
ticular rules  of  the  common  law,  will  still  apply,  modified  and 
adapted,  by  the  same  considerations,  to  the  new  .circumstances. 
If  these  are  such  as  give  rise  to  controversy  and  litigation,  they 
soon,  like  previous  cases,  come  to  be  settled  by  judicial  exposi- 
tion, and  the  principles  thus  settled,  soon  come  to  have  the  effect 
of  precise  and  practical  rules.  Norway  Plains  Co.  v.  Boston  and 
Maine  Railroad^  1  Gray,  263,  267,  268  ;  Belly.  The  State,  1  Swan. 
(Tenn.)  42  ;  Western  Counties  Manure  Co.  v.  Lawes  Chemical 
Manure  Co.,  L.  R.,  9  Exch.  222,  223  ;  S.  C,  10  Eng.  Rep.  394,  395. 

With  the  advancing  state  of  society,  new  questions  are  con- 
stantly arising  for  decision,  and  the  courts  adapt  the  practice 
and  course  of  proceedings  to  the  existing  condition  of  things, 
instead  of  adhering  to  forms  and  rules  which  were  established 
under  different  circumstances;  and  they  do  not  decline  the 
enforcement  of  rights  or  the  administration  of  justice,  because 
there  is  no  remedy  according  to  the  old  forms  or  rules.  Wall- 
worth  V.  Holt.,  4  Mylne  &  Craig,  635. 

The  principle  upon  which  the  courts  proceed  is,  that  the  com- 
mon law  does  not  mould  the  habits,  the  manners,  and  the  trans- 
actions of  mankind  to  inflexible  rules,  but  adapts  itself  to  the 
business  and  the  circumstances  of  the  times,  and  keeps  pace 
with  the  improvements  of  the  age.  Lyle  v.  Richards.,  9  Serg.  & 
Rawle,  351. 

Our  system  of  common-law  rules  and  of  equitable  principles 
consists  of  the  accumulations  of  several  centuries,  as  is  entirely 
evident,  when  it  is  remembered  that  so  much  of  our  law  is  derived 
from  that  of  England.  So  extensive,  so  complicated,  so  useful, 
and  so  practical  a  system  could  not  be  the  work  of  one  man,  nor 
of  one  nation,  nor  even  of  one  age.  Its  vast  collection  of  adjudged 
cases  is  the  growth  of  centuries  ;  and,  from  a  comparatively 
small  number  of  decisions  in  the  early  times,  the  number  has 
constantly  increased,  and  the  system  of  jurisprudence  has  ex- 
panded from  time  to  time  as  the  constantly  recurring  demands 
of  men  have  presented  questions  to  the  tribunals  for  decision, 
until  the  result  has  been  the  establishment  of  a  system  of  legal 
and  equitable  jurisprudence  which  is  adequate  to  the  demands  or 
the  necessities  of  a  great  commercial  nation. 

In  the  construction  of  this  system,  the  courts  were  constantly 
in  the  habit  of  applying  to  new  combinarions  of  circumstances 


8  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 

those  rules  of  law  wliich  were  to  be  found  in  judicial  precedents, 
or  in  works  treating  of  legal  principles ;  and  for  the  sake  of 
attaining  nniformity,  consistency,  and  certainty,  those  rules  or 
principles,  unless  clearly  unreasonable,  or  inconsistent,  were 
applied  in  all  cases  as  they  arose.  ]Sut,  notwithstanding  the 
great  number  and  variety  of  decisions,  there  always  have  been, 
and  there  are  now,  cases  constantly  occurring  which  are  new 
in  principle,  or  of  first  impression.  So,  too,  there  are  cases, 
which,  though  not  new  in  principle,  yet  present  questions  which 
have  never  been  determined.  In  all  such  cases,  the  courts  avail 
themselves  of  the  vast  collections  of  principles  which  have  been 
settled  as  law,  and  then  from  the  analogies  of  the  law,  and  the 
reason  and  justice  of  the  case,  they  decide  in  such  manner  as 
will  best  subserve  the  rights  of  the  parties,  and  the  public  inter- 
ests, if  such  decision  should  be  followed  as  a  precedent.  Where 
the  common  law  does  not  give  a  right  of  action  for  a  tort,  the 
court  cannot  supply  the  defect  and  furnish  a  remedy.  Oshorn  v. 
Oillett,  L.  R.,  8  Exch.  88,  97  ;  42  L.  J.  Exch.  53  ;  21  W.  R.  409  ; 
28  L.  T.  (N.  S.)  197. 

In  addition  to  the  decisions  of  the  courts,  the  legislature  has 
enacted  a  vast  system  of  statute  law,  in  relation  to  rights  and 
remedies.  It  is  from  this  extensive  system  of  legal  and  equitable 
jurisprudence,  and  from  the  various  statutes  of  the  States,  that  a 
knowledge  of  the  practice  of  the  courts  is  to  be  obtained.  And 
while  engaged  in  the  study  of  that  practice,  it  will  be  constantly 
borne  in  mind,  that  many  of  its  rules  are  statutory  enactments, 
instead  of  being  principles  established  by  the  decisions  of  the 
courts.  Yet,  whenever  the  statute  has  not  provided  a  rule,  the 
courts  are  at  liberty  to  resort  to  the  decisions,  for  materials  to 
supply  the  defect. 

In  the  creation  or  establishment  of  laws,  it  is  the  province  of 
the  legislature  to  determine  what  is  best  for  the  public  good,  and 
to  provide  for  it  by  proper  enactments.  The  province  of  the 
judge  is  to  expound  the  law,  instead  of  making  it.  The  written 
law  he  is  to  ascertain  from  the  statutes  ;  and  the  unwritten  law 
he  is  to  find  in  the  decisions  of  his  predecessors,  and  of  the  exist- 
ing courts,  or  from  the  text-writers  of  acknowledged  authority, 
and  upon  the  principles  which  are  clearly  to  be  deduced  from 
them  by  sound  reason  and  just  inference.  The  distinction 
between  legal  and  equitable  rights  will  continue  to  exist,  although 
a  statute  abolishes  the  distinction  between  actions  at  law  and  suits 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  9 

in  equity  so  far  as  the  forms  of  procedure  are  concerned. 
Matthews  v.  McPherson,  m  N.  C.  189. 

Altliougli  a  code  abolishes  all  forms  of  action,  the  principles  by 
which  the  different  forms  of  action  were  previously  governed 
will  still  remain,  and  will  control  in  determining  the  rights  of  the 
parties  to  an  action.  Eldridge  v.  Adams ^  54  Barb.  417  ;  Hubhell 
V.  Sibley,  50  N.  Y.  (5  Sick.)  468,  472  ;  Paul  v.  ParsTiall,  14  Abb. 
(N.  S.)  138,  142  ;  Dunpliy  v.  Kleinsmith,  11  Wall.  (U.  S.)  510. 

§  2.  Nature  and  definition  of  actions.  Whenever  a  person 
believes  that  he  is  about  to  be  injured  by  the  act  of  another,  or 
when  he  feels  that  an  injury  has  already  been  done,  he  will 
naturally  adopt  the  most  effective  means  of  preventing  or  remov- 
ing the  injury,  or  of  redressing  the  wrong  committed  ;  and  on 
the  other  hand,  the  party  against  whom  the  claim  is  made  will 
desire  to  know  whether  he  can  successfully  resist  the  demand, 
and  by  what  means  ;  and,  for  these  purposes,  each  party,  whether 
complainant  or  defendant,  must,  with  or  without  the  aid  of  legal 
advisers,  carefully  consider  the  law  affecting  the  asserted  right, 
and  the  nature  of  the  injury  or  offense,  and  the  remedies  or 
punishments,  before  any  steps  can  properly  be  taken,  whether 
precautionary,  offensive  or  defensive,  or  the  result  may  be  a 
serious  error  by  which  he  may  become  a  wrong-doer,  or  may 
lose  all  means  of  redress,  or  may  waive  a  good  defense  in  conse- 
quence of  his  injudicious  proceedings  or  omissions. 

The  general  nature  of  an  action  is  thus  explained  by  an  elegant 
writer  on  the  laws  and  constitution  of  England:  "A  person  (let 
us  suppose)  who  has  a  cause  of  action,  either  in  a  right  detained, 
or  an  injury  done,  is  determined  to  bring  his  action  ;  and,  by  his 
attorney,  takes  oxxi  process  against  the  party  complained  of;  in 
consequence  of  which  the  party  complained  of  (whom  we  call 
the  defendant),  either  puts  in  common  or  special  hail,  as  the  case 
requires.  The  defendant  being  thus  secured,  the  plaintiff  declares, 
in  proper  form,  the  nature  of  his  case.  The  defendant  answers 
this  declaration  ;  and  the  charge  and  defense,  by  due  course  of 
pleading,  are  brought  to  one  or  more  plain  simple  facts.  These 
facts,  arising  out  of  the  pleadings,  and  thence  called  issues,  come 
next  to  be  tried  by  a  jury.  The  jury  having  heard  the  emdence 
upon  the  issue  before  them  find  (we  will  suppose)  a  xerdict  for  the 
plaintiff.  On  that  verdict,  2^,  judgment  is  afterward  entered.  The 
plaintiff's  costs  of  suit  are  then  taxed,  by  the  oflicer  of  the  court, 
and  the  judgment  is  put  in  execution,  by  levying  on  the  defend- 
ant's effects  the  damages  given  by  the  jury,  and  the  costs  allowed 

Vol.  1.-2 


10  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

by  the  court. ;  which  being  done,  there  is  an  end  of  the  suit,  and 
both  parties  are  once  more  out  of  court." 

The  explanation  just  given  rehites  to  an  action  at  law,  and  in 
some  respects  it  differs  from  a  description  of  a  suit  in  equity, 
yet  it  serves  to  point  out  the  essential  features  of  all  civil  actions. 

The  most  general  division  of  actions  is  usually  that  of  civil 
and  criminal,  but  since  the  latter  kind  of  action  does  not  come 
within  the  scope  of  this  work,  no  notice  will  be  taken  of  that 
subject.     See  Code,  §§  4,  5,  7. 

Civil  actions  have  heretofore  been  divided  into  legal,  and 
equitable;  the  former  being  such  as  are  cognizable  by  courts*  of 
law,  and  the  latter  such  as  are  peculiar  to  the  jurisdiction  of 
courts  of  equity.  In  this  State  (N.  Y.),  there  are  no  separate 
courts  of  law  and  of  equity,  and  all  remedies,  legal  or  equitable, 
are  administered  by  the  same  courts  or  judges,  according  to  the 
circumstances  of  the  particular  case,  although  the  mode  of  pro- 
cedure may  differ  according  to  the  relief  or  remedy  desired, 

A  civil  action  is  a  legal  prosecution,  in  an  appropriate  court, 
by  a  party  complainant,  against  a  party  defendant,  to  obtain  the 
judgment  of  that  court  in  relation  to  some  right  claimed  to  be 
secured,  or  some  remedy  claimed  to  be  given,  by  law,  to  the 
party  complaining.  In  every  civil  action,  legally  prosecuted, 
there  must  be  a  court  having  jurisdiction,  or  it  will  not  be  an 
appropriate  court;  there  must  be  a  party  complaining,  who 
brings  the  action  before  that  court ;  there  must  be  a  party  who  is 
charged  with  doing  or  omitting  to  do  something,  for  which  he 
is  brought  into  court;  and  there  must  be  a  subject-matter  of  liti- 
gation; and,  upon  the  whole  case,  the  rights  of  the  parties  are  to 
be  determined  by  a  decision  or  judgment  of  the  court.  See  also 
the  cases  cited  in  2  Wait's  Law  and  Pract.  40;  Wait's  Code,  §  2. 

A  civil  action  is  one  prosecuted  for  the  establishment  or  recov- 
ery of  a  right,  or  the  prevention  of  a  wrong,  or  the  redress  of 
an  injury.  It  may  be  instituted  by  governments,  corporations  or 
individuals,  to  enforce  any  remedy,  or  to  obtain  or  secure  any 
relief  which  the  law  gives  to  a  complainant  against  a  defendant. 

The  term  "action"  includes  all  the  proceedings  from  its  com- 
mencement to  its  termination;  and,  therefore,  the  proceeding  is 
called  an  action  until  the  rendition  of  the  decision,  decree  or 
judgment;  but  it  is  not  so  called  after  that  time. 

A  distinction  is  sometimes  made  by  applying  the  term  "  action  " 
to  proceedings  at  law,  and  "suit"  to  those  in  equity;  and  the 
familiar  expression  is,  "  an  action  at  law,"  or,  "a  suit  in  equity." 


OF  EIGHTS,  REMEDIES  AND  ACTIONS.  11 

Didier  v.  Damson,  10  Paige,  515;  S.  C,  2  N.  Y.  Leg.  Obs.  420; 
People  ex  rcl.  Sanders  v.  Colborne,  20  How.  378,  381,  382. 

At  the  common  law  an  action  for  the  recovery  of  land,  with- 
out damages,  was  called  a  real  action. 

An  action  for  the  recovery  of  some  specific  personal  prop- 
erty, wrongfully  withheld  by  the  defendant  fsom  the  plaintiff, 
or  for  a  compensation  in  money  for  an  injury  sustained,  which 
compensation  is  technically  called  damages,  was  called  a  per- 
sonal action. 

An  action  for  the  recovery  of  real  estate  and  damages  for  its 
illegal  detention  was  called  a  mixed  action. 

At  common  law,  an  action  ex  contractu  is  one  which  arises  on 
contract,  and  is  brought  for  the  recovery  of  damages,  or  of  a 
thing  which  belongs  to  the  plaintiff.  These  actions  were  account, 
annuity,  assumpsit,  covenant,  debt,  and  detinue. 

A  persona]  action,  ex  delicto,  was  for  the  redress  of  a  wrong 
unconnected  with  contract,  and  the  actions  were  case,  trover,  re- 
plevin and  trespass. 

A  local  action  is  one  which  must  be  brought  in  some  particu- 
lar locality,  whether  that  place  be  fixed  by  common  law  or  by 
statute. 

A  transitory  action  is  one  which  may  be  brought  in  any 
county  which  the  plaintiff  may  prefer. 

An  action  in  personam  is  one  in  which  the  proceedings  are 
against  the  person  in  contradistinction  to  those  against  specific 
things  or  in  rem.  An  action  in  rem  is  one  instituted  against  the 
thing  in  contradistinction  to  personal  actions,  which  are  said  to 
be  in  personam. 

In  this  brief  explanation  of  the  nature  of  actions,  the  discus- 
sion has  been  limited  to  such  matters  as  pertain  to  the  practice, 
as  distinguished  from  a  study  of  the  general  rules  of  law,  or  the 
principles  of  equity.  It  must  not,  however,  be  supposed,  that 
this  omission  rests  upon  the  ground  that  the  latter  study  is  not 
deemed  important.  On  the  other  hand,  let  the  stud.ent  at  all 
tipies  remember  that  his  only  hope  of  eminent  success  in  his  pro- 
fession must  be  founded  upon  the  possession  of  a  profound,  an 
accurate,  and  an  available  knowledge  of  all  the  general  rules  of 
the  common  law,  and  of  the  principles  of  equity. 


12  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 


TITLE   III. 

OF  SOME  OF  THE   PEINCIPAL   DISTINCTIONS  BETWEEN 
LEGAL  ACTIONS  AND  EQUITABLE  SUITS. 

ARTICLE  I. 

OF  LEGAL  ACTIONS. 

Section  1.  In  general.  Legal  rules  and  principles  must  be  ex- 
pressed in  general  terms,  and,  therefore,  it  must  sometimes  hap- 
pen that  there  are  cases  within  the  words  but  not  within  the  rea- 
son or  the  spirit  of  the  rule;  while  there  are  other  cases  within 
the  meaning,  but  not  within  the  words  of  it.  The  reason  of  this 
is  evident  on  the  slightest  examination,  since  it  will  readily  be 
conceded  that  it  is  impossible  for  any  one  to  foresee  or  provide 
for  the  endless  series  of  complicated  occurrences  which  must 
take  place  in  society.  And,  whenever  a  case  occurs  which  does 
not  fall  within  the  provisions  of  the  general  rules,  there  is  a  de- 
fect to  be  supplied,  or  injustice  must  result  from  that  cause.  In 
many  of  these  cases,  courts  of  equity  have  devised  and  applied 
such  rules  as  a  reasonable  and  just  man  would  have  provided 
had  he  foreseen  the  circumstances  of  the  case,  and  had  he 
authority  to  establish  a  rule  for  it.  In  some  cases  the  legislature 
have  enacted  laws  designed  to  provide  remedies  or  rules  in  which 
the  common  law  was  found  to  be  deficient. 

The  remedies  afforded  by  the  common-law  courts  are  limited 
by  the  rules  of  the  common  law,  which,  as  a  general  thing,  are 
fixed  and  unbending;  and  one  of  the  settled  maxims  of  that  system 
is,  that  a  decided  point  furnishes  the  rule  for  future  similar 
cases.  In  addition  to  this,  the  character  of  the  process,  plead- 
ings, mode  of  trial,  and  the  judgment  all  tend  to  reduce  the 
application  of  remedial  justice  to  the  enforcement  of  these  fixed 
rules,  instead  of  attempting  to  investigate  the  complicated  equi- 
ties which  exist  in  so  many  cases,  and  in  which  no  adequate 
relief  is  to  be  obtained  except  through  equitable  interference. 
From  this  general  statement  it  will  be  seen  that  one  of  the  dis- 
tinguishing features  of  common-law  remedies  is,  that  they  are 
usually  unattainable  except  by  the  application  of  fixed,  distinct 
rules,  through  the  aid  of  a  court,  which  seeks  to  apply  and  en- 
force these  general  rules  to  all  cases,  instead  of  investigating  and 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  13 

securing  any  peculiar  equities  which  may  exist  in  some  partic- 
ular case  or  class  of  cases. 

This  system,  which  may  seem  harsh  in  some  of  its  aspects,  has, 
nevertheless,  one  very  valuable  feature,  and  that  is,  it  is  admir- 
ably adapted  to  the  important  end  of  securing  certainty  and 
uniformity  in  the  administration  of  the  law,  a  result  which  is 
invaluable  to  a  commercial  people, 

§  2.  Legal  actions  relate  to  some  act  done  or  omitted.  It  is  the 
object  of  the  law  to  give  a  remedy  in  every  case  which  justly 
requires  it.  For  this  purpose  the  whole  body  of  the  law  was 
created  ;  and  every  important  right  is  so  guarded  by  familiar  and 
public  laws  that  each  person  may  know  what  those  rights  are, 
and  what  remedy  is  afforded  for  an  invasion  of  them.  Every 
person  is  bound  to  know  the  general  rules  of  the  law  or  to  sub- 
mit to  the  consequences  resulting  from  his  ignorance,  or  his 
infringement  of  them.  He  who  wrongfully  invades  the  posses- 
sion of  his  neighbor  must  respond  in  damages  corresponding  to 
the  injury  done.  So  he  who  inexcusably  breaks  a  valid  contract 
must  make  good  the  loss  which  the  other  party  sustains  in  con- 
sequence. 

In  these  cases,  it  will  be  observed,  the  law  does  not  interfere 
until  after  the  wrongful  act  has  been  committed,  and  it  then 
holds  the  wrong-doer  accountable  for  the  damages  resulting  from 
his  acts.  The  whole  remedy  consists  in  compensation  to  the 
injured  party  by  way  of  damages  assessed  against  the  party  in 
the  wrong.  The  coercive  power  of  the  law  is  limited  in  its  in- 
fluence upon  the  parties,  by  declaring  that  every  violator  of  its 
principles  must  respond  in  such  damages  as  may  be  legally 
assessed  against  him,  and  enforced  against  his  property  ot  his 
person.  It  is  by  virtue  of  this  system  that  most  wrongful  acts 
are  prevented,  and  most  contracts  are  performed,  for  the  remedy 
by  way  of  damages  is  a  most  effective  one  when  properly  admin- 
istered. Beyond  this  species  of  remedy,  the  common  law  does 
not,  as  a  general  rule,  extend  ;  and,  where  a  party  would  prevent 
the  commission  of  a  wrong,  or  would  compel  the  specific  perform- 
ance of  a  contract,  by  means  of  the  process  of  the  courts,  he 
must  resort  to  a  court  of  equity,  where  such  remedies  are  one  of 
the  peculiar  features  of  the  system.  In  some  peculiar  cases,  a 
resort  to  a  court  of  equity  is  to  be  preferred,  because  no  damages 
probably  attainable  would  be  as  valuable  as  the  equitable  relief 
which  is  certain,  if  sought.  But,  as  a  general  rule,  the  courts  of 
law  are  adequate  to  all  the  emergencies  of  the  case,  and  they 


14  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

enforce  most  of  the  remedies  which  parties  seek  through  the  in;- 
terposition  of  the  courts. 

§  3.  Compensation  in  damages,  or  not  at  all.  As  has  just  been 
seen,  the  law  gives  damages  for  past  injuries.  But,  beyond  this 
relief,  a  common-law  court  does  not  go,  for  it  will  not  interfere 
to  prevent  the  violation  of  a  right.  It  will  give  damages  for  the 
breach  of  a  contract,  but  a  court  of  equity  will  do  more,  it  will 
anticipate  the  event,  and  restrain  a  person  who  merely  shows  an 
intention  to  break  his  agreement.  It  is  in  those  cases  in  which 
the  damages  for  past  acts  would  be  so  small  as  not  to  atford  an 
adequate  remedy,  that  the  powers  of  a  court  of  equity  are  inval- 
uable. In  one  of  these  classes  of  cases  the  relief  obtained  is 
remedial,  in  the  other  it  is  preventive,  or,  in  other  words,  in  one 
case  it  is  legal,  in  the  other  equitable.  Where  these  courts  are 
separate,  it  is  a  general  rule  that  neither  court  will  usurp  the 
functions  of  the  other.  And.  therefore,  if  the  injury  complained 
of  be  completed,  so  that  compensation  alone  can  be  awarded,  a 
court  of  equity  will  not  interfere,  even  though  it  might,  in  its 
discretion, .  have  power  to  do  so. 

So,  on  the  other  hand,  a  court  of  law  will  not  entertain  an  ap- 
plication where  no  breach  of  contract  has  occurred,  or  no  wrong- 
ful act  has  been  done,  even  though  it  has  power  to  issue  an 
injunction  under  some  circumstances. 

In  those  States  in  which  legal  and  equitable  remedies  are 
enforced  by  the  same  court,  some  of  these  distinctions  may  seem 
to  be  of  no  importance,  and  yet  it  is  to  be  remembered  that  the 
mode  of  proceeding  which  is  to  be  adopted  must  be  legal  or 
equitable  as  the  case  may  require,  as  will  be  fully  explained  else- 
wh^e. 

§  4.  Affords  no  relief  outside  of  the  general  rules.  At  common 
law,  simplicity  and  certainty  in  the  practice  is  a  prominent  object, 
and  while  the  rules  are  so  general  as  to  be  readily  applied  to  the 
facts  of  each  particular  case,  yet  they  cannot  be  so  extended  or 
varied  as  to  meet  the  requirements  of  a  system  so  complicated 
as  some  of  the  remedies  afforded  by  a  court  of  equity.  And  it 
is,  therefore,  a  general  rule,  that  the  common-law  courts  do  not 
afford  any  relief  outside  of  its  general  system  of  legal  remedies. 
If  other  relief  is  sought,  a  different  court  must  furnish  it,  or  the 
party  may  be  remediless.  ' 

At  common  law,  the  judgments  are  uniform,  simple  and  invari- 
able, according  to  the  nature  of  the  action.  In  equity,  the  relief 
is  modified  to  suit  all  the  exigencies  of  the  case  fully  and  cir- 


5* 

OF  RIGHTS,  REMEDIES  AND  ACTIONS.  15 

cumstantially  ;  authoritative  and  binding  declarations  are  made 
concerning  the  rights  alleged  ;  specific  things  are  directed  to  be 
mutuall}'-  done  or  permitted;  and  the  conduct  to  be  observed  by 
the  numerous  parties  is  pointed  out,  although  such  parties  may 
sustain  relations  of  widely  different  characters,  or  be  influenced 
by  interests  of  a  conflicting  or  important  nature. 

§  5.  Do  uot  compel  specific  performance  of  contracts.  This 
subject  has  already  been  alluded  to,  but  it  is  important  that  the 
student  should  understand  the  nature  and  the  extent  of  the 
powers  of  courts  of  law,  and  of  equity,  if  he  would  act  intelli- 
gently in  the  pursuit  of  remedies. 

There  is  no  class  of  cases,  perhaps,  in  which  the  want  of  power 
in  a  common-law  court  is  more  seriously  felt,  than  in  this  one 
relating  to  the  performance  of  contracts.  In  many  cases,  such  a 
performance  in  good  faith,  is  of  the  utmost  importance  to  the 
party  who  asks  that  it  be  carried  out.  His  plans  and  other  con- 
tracts may  have  been  based  upon  its  due  execution,  and  his  lia- 
bilities to  others,  as  well  as  other  consequent  losses,  may  be  such 
that  no  damages  which  would  be  given  would  make  good. 
There  are  some  instances,  in  which  the  contract  relates  to  the 
personal  conduct  of  a  party,  which  no  court  will  undertake  to 
require  to  be  literally  performed,  as  a  contract  to  sing  at  a 
theater,  or  write  a  book,  or  keep  an  inn,  or  build  a  house,  for  the 
reason  that  no  degree  of  compulsion  which  the  court  could  exer- 
cise would  secure  the  desired  result.  But  if  the  contract  contains 
a  negative  clause,  such  as  an  agreement  not  to  sing  at  any  other 
theater,  or  not  to  write  books  for  others,  or  the  like,  there  a  court 
of  equity  will  interfere  by  restraining  the  party  from  violating 
the  negative  clause.  See  "Injunction."  But  in  all  such  cases  a 
court  of  law  would  be  powerless  except  to  give  damages  for  the 
breach  of  the  contract.  The  student  will  recollect  that  these 
remarks  treat  the  matter  as  though  there  were  separate  courts  of 
law  and  equity,  instead  of  a  single  court  which  exercises  the 
powers  of  both  those  courts. 

§  6.  Do  not  prevent  the  commission  of  wrongs.  For  injuries  to 
real  estate,  the  common-law  actions  of  trespass,  waste,  nuisance, 
and  the  like,  are  the  remedies  usually  sought.  But,  where  the 
injury,  if  once  done,  would  be  irreparable,  courts  of  equity 
sometimes  interfere  to  prevent  the  commission  of  the  wrongful 
act,  and  this  relief  a  court  of  common  law  cannot  grant.  Any 
exception  to  this  rule  will  be  found  to  have  a  statutory  origin. 


16  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 

§  7.  Not  adapted  to  complicated  equitable  cases.  It  is  the  tend- 
ency of  any  system  of  mere  legal  principles,  when  reduced  to  a 
practical  application,  to  fail  of  effecting  such  justice  between  party 
and  party  as  the  special  circumstances  of  a  case  may  require, 
by  reason  of  the  minuteness  and  inflexibility  of  its  rules  and  the 
inability  of  the  judges  to  adapt  its  remedies  to  the  necessities  of 
the  controversy  under  consideration.  And  it  is  accordingly 
found,  that  the  rules  of  the  common  law,  when  reduced  to  prac- 
tice, sometimes  become  the  means  of  injustice  in  cases  in  which 
special  equitable  circumstances  exist,  which  the  court  cannot 
take  cognizance  of  because  of  the  precise  nature  of  common-law 
principles,  their  inflexible  character,  and  the  technical  rules  of 
pleadings  and  practice  which  were  designed  for  no  remedies  ex- 
cept such  as  the  common  law  afforded.  To  remedy  these  incon- 
veniences, and  to  prevent  injustice,  the  flexible,  convenient  and 
just  system  of  equitable  remedies  was  devised,  until  there  are 
at  the  present  time,  but  few,  if  any,  cases,  in  which  the  courts 
will  not  furnish  all  proper  relief,  in  some  form,  if  applied  for  in 
due  time  and  in  a  proper  manner. 

§  8.  Powers  of  the  court  terminate  with  the  judgment^  and 
its  enforcement.  At  common  law,  a  final  judgment,  when  once 
entered,  exhausts  the  powers  of  the  court,  except  in  the  way  of 
proceedings  to  review  or  reverse  it.  There  is  no  power  to  open 
the  judgment  for  the  mere  purpose  of  rendering  a  different  judg- 
ment upon  the  same  facts,  or  for  the  incorporation  of  facts  not 
noticed  upon  the  rendition  of  the  judgment.  If  the  judgment  was 
regular  and  legal  upon  the  facts  established,  the  judgment  is  final 
and  conclusive.  If  it  was  irregular,  the  remedy  is  by  way  of 
proceedings  to  set  it  aside ;  if  illegal,  to  obtain  its  reversal.  An 
action  will  not  lie  at  common  law  for  the  purpose  of  obtaining 
some  relief  or  remedy  to  which  the  party  was  entitled,  but  which 
he  neglected  to  present  before  the  rendition  of  the  previous  judg- 
ment. 

Courts  of  equity  exercise  much  greater  powers  for  the  purpose 
of  modifying  their  decrees,  or  for  their  impeachment  when  they 
are  not  such  as  justice  and  equity  would  sustain. 

§  9.  Extension  of  remedies  by  common  law.  The  extension  of 
remedies  by  the  common  law  is  not  by  devising  new  rules  or 
principles,  but  by  the  application  of  existing  rules  to  new  combina- 
tions of  facts,  or  to  new  cases  which  ought  to  be  included  in  the 
settled  rule.  And,  in  the  multiplicity  of  reported  cases,  it  is  a 
surprising  fact  that  so  many  of  them  turned  upon  the  question 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  17 

whether  the  conceded  rule  had  been  properly  applied  in  the  par- 
ticular case,  instead  of  the  point  whether  there  was  such  a  rule 
as  that  claimed  to  be  law.  Courts  of  law  do  not  usually  claim 
or  exercise  the  power  of  devising  or  creating  new  principles  of 
law,  but  limit  themselves  to  the  administration  or  application  of 
such  principles  as  are  recognized  as  the  law  of  the  land.  And 
yet,  such  is  the  extent,  variety  and  complication  of  human  affairs 
that  require  to  be  settled  by  the  courts,  that  it  will  be  found  that 
the  simplest  rule  has  been  applied  in  a  great  number  of  cases  which 
differ  widely  in  the  facts  of  each  case;  and  it  may  seem  in  some 
instances  as  though  a  new  rule  had  been  adopted  and  enforced  in 
some  of  them.  Courts  of  common  law,  in  a  great  variety  of 
cases,  adopt  the  most  enlarged  and  liberal  principles  of  decision; 
and,  indeed,  often  proceed,  as  far  as  the  nature  of  the  rights  and 
remedies,  which  they  are  called  upon  to  administer,  will  permit, 
upon  the  same  doctrines  as  courts  of  equity.  Western  Counties 
Manure  Co.  v.  Lames  Chemical  Manure  Co.,  L.  R.,  9  Exch.  222, 
223;  S.  C,  10  Eng.  Rep.  395,  396.  This  is  especially  true,  in  re- 
gard to  cases  involving  the  application  of  the  law  of  nations,  and 
of  commercial  and  maritime  law  and  usages,  and  even  of  foreign 
municipal  law.  1  Story's  Eq.  Jur.,  §  34.  In  matters  of  mere 
practice  the  common-law  courts  possess  and  exercise  greater 
powers  in  the  adoption  of  ordinary  rules  of  practice  than  in 
any  other  respect;  and  practice,  it  must  be  remembered,  is  but 
the  application  of  those  remedies  which  the  law  provides  by  its 
general  rules. 

§  10.  Exceptions  to  general  legal  rules.  When  a  rule  of  law 
has  become  w^ell  settled,  the  courts  cannot  properly  disregard  it. 
And  in  the  application  of  this  principle,  it  occasionally  happens 
that  a  general  rule,  if  strictly  enforced,  would  be  productive  of 
hardship  or  injustice  in  some  classes  of  cases.  But  it  is  to  be 
remembered  that  an  inconvenient  or  unjust  rule  of  law  may  be 
remedied  by  the  legislature  ;  and,  until  that  is  done,  it  is  best,  as 
a  general  rule,  to  abide  by  the  adjudged  cases  ;  for  an  attempt 
to  change  the  rule  by  a  judicial  decision  tends  to  unsettle  the 
law;  and  it  has  been  said  that  "Hard  cases  make  bad  law." 
Broom's  Leg.  Max.  150,  and  cases  there  cited.  Hard  cases  are  not 
permitted  to  make  bad  equity  any  more  than  bad  law.  Moore  v. 
Pierson,  6  Iowa,  279.  And  the  general  practice  is,  to  apply  and 
enforce  well-settled  rules,  even  when  they  cause  a  hardship  in 
some  particular  case.  Yermilya  v.  Austin,  2  E.  D.  Smith,  208 ; 
Beaulieu  v.  Finglam,  cited  in  argument  in  Beedie  v.  London  and 

Vol.  L— 3 


18  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

North  Westeim  R.  B.  Oo.,  4  Exch.  251  ;  Freeman  v.  TrancTi,  14 
Eng.  Law  and  Eq.  224,  227  ;  12  C.  B.  406  ;  Supervisors  of  Onon- 
daga V.  Briggs,  2  Denio,  32. 

There  are  instances,  however,  in  which  a  subsequent  case  may 
resemble  a  former  one  in  many  of  its  principal  facts,  and  yet  it 
may  also  contain  some  important  facts  or  elements  which  will 
bear  upon  the  decision,  and,  when  this  is  the  case,  courts  frequent- 
ly act  upon  the  principle  of  distinguishing  the  latter  case  from 
the  former ;  and  by  that  means  are  enabled  to  render  such  a 
decision  as  the  justice  of  the  case  may  require.  Quinn  v.  Lloyd, 
41  N.  Y.  (2  Hand)  353.  But,  while  it  is  proper  to  act  upon  a 
substantial  distinction,  the  courts  cannot  properly  carry  the  rule 
so  far  as  to  act  upon  unsubstantial  and  shadowy  distinctions 
which  do  not  affect  the  merits  of  the  case.  Such  distinctions 
have  properly  been  termed  by  the  courts  nice,  subtle,  refined, 
thin,  slight  or  slender,  and  they  have  frequently  refused  to  act 
upon  them,  and  yet,  if  the  courts  adopt  or  make  a  distinction, 
the  decision  is  to  be  followed  like  any  other  established  rule.  It 
is  not  desirable  to  multiply  distinctions,  as  they  cannot  fail  to 
introduce  uncertainty  into  the  law,  and  in  their  subsequent  appli- 
cations to  other  cases  may  cause  as  much  hardship  as  would 
have  resulted  from  enforcement  of  the  general  rule.  There  are 
those  who  delight  to  "split  the  weight  of  things  on  the  hair- 
breadth of  words."  See  Jackson  v.  Waldron,  13  Wend.  207 ;  per 
Tracy,  senator. 

Distinctions  in  the  decision  of  causes  are  not  always  founded 
upon  the  principle  that  the  court  does  not  approve  of  the  rule 
laid  down  in  the  previous  case  ;  for  such  decision  may  be  fully 
concurred  in,  and  yet  the  facts  of  the  subsequent  case  may  be  so 
different  in  some  particulars  as  to  require  the  decision  to  be 
founded  upon  or  modified  by  them. 

§  11.  Tries  questions  of  fact  by  a  jury.  In  common-law  actions 
the  right  of  having  questions  of  fact  tried  and  settled  by  the 
verdict  of  a  jury  is  as  much  fixed,  as  are  the  rights  of  the  parties 
clear  under  the  rules  of  the  law. 

To  explain  the  origin  of  this  mode  of  trial,  or  to  trace  its  his- 
tory, or  explain  its  advantages,  is  not  the  present  object ;  but 
rather  to  point  out  the  distinction  between  this  method  of  trial 
and  that  adopted  in  courts  of  equity  which,  as  a  general  rule, 
dispense  with  the  aid  of  juries,  and  try  questions  of  fact  before 
the  court  itself,  upon  such  evidence  as  may  be  proper.  And 
when  the  nature  of  the  two  systems  of  remedies  is  considered, 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  19 

the  propriety  of  the  practice  in  each  case  will  be  evident.  In 
simple  direct  issues,  the  verdict  of  a  jury  would  be  convenient, 
safe,  and  satisfactory.  But,  in  a  case  involving  numerous  issues, 
of  an  intricate  nature,  requiring  many  different  special  directions, 
snch  a  trial  would  be  a  poor  substitute  for  the  careful,  elaborate 
and  equitable  relief  which  may  be  awarded  by  a  profound  and 
conscientious  judge  who  takes  time  to  survey  the  whole  case 
even  to  its  minutest  details,  and  then  pronounces  a  decree  which 
guards  all  the  rights  of  both  parties.  A  trial  by  a  referee  is  not 
overlooked,  but  as  it  is  a  mere  substitute  for  a  trial  by  jury,  it 
does  not  require  notice  in  this  place. 

§  12.  Legal  remedies  may  exist,  and  yet  be  insufficient.  There 
are  many  cases  in  which  the  common-law  courts  furnish  a  par- 
tial though  defective  remedy,  while  courts  of  equity  afford  the 
fullest  relief.  To  explain  fully  the  particulars  in  which  such 
relief  may  or  may  not  be  had  at  law,  or  to  enumerate  all  the 
instances  in  which  partial  relief  is  attainable,  is  not  to  be  expected 
in  this  place.  A  general  synopsis  of  some  of  the  cases  will  be 
convenient  as  an  illustration  of  the  defects  mentioned. 

At  common  law  a  corporation  might  have  a  good  cause  of 
action  against  one  of  its  members,  and  yet,  at  law,  no  action 
could  be  brought  upon  it,  while  equity  would  give  full  relief. 
The  same  rule  applies  to  the  case  of  executors  or  partners.  Cole 
V.  Reynolds,  18  N.  Y.  (4  Smith)  74  ;  Gridley  v.  Gridley,  24  id. 
(10  Smith)  135,  136.  See  Benman  v.  Prince,  40  Barb.  213,  217, 
218,  219 ;  Kingsland  v.  Br  aisled,  2  Lans.  17,  20 ;  Waller  v. 
TJiomas^  42  How.  337 ;  4  Daly,  551.  So  in  replevin,  if  the 
property  claimed  could  not  be  described  with  the  requisite 
certainty,  a  court  of  equity  alone  could  give  the  desired  aid.  An 
action  of  account  is  a  common-law  remedy,  but  if  the  taking  of 
an  account  is  important,  the  powers  of  a  court  of  equity  are  far 
more  desirable  than  the  common-law  action.     See  Account. 

A  set-off  could  not  be  made  available  at  common  law,  but  for 
a  long  time  past  this  defect  has  been  remedied  by  the  statute. 
Before  these  statutes,  a  court  of  equity  alone  was  the  proper 
forum  to  resort  to  in  such  cases.     See  Set-off. 

An  action  for  the  recovery  of  dower  is  given  by  the  common 
law,  but  there  were  superior  advantages  for  the  widow  if  she 
applied  to  a  court  of  equity,  in  her  comparatively  helpless  con- 
dition, and  for  the  advantage  of  being  better  able  to  ascertain 
in  what  estates  she  had  a  right  of  dower.  The  same  principles 
were  applicable  to  cases  in  partition,  or  in  setting  out  bounda- 


20  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

lies.  These,  and  other  similar  cases  which  might  be  mentioned, 
seem  to  show  that  many  remedies  are  common  to  both  courts  of 
law  and  of  equity,  and  that  each  court  has  some  advantages  over 
the  other  in  the  administration  of  the  law  ;  and  if  this  outline 
shall  serve  to  render  the  subject  more  clear  to  the  student,  the 
object  in  view  will  have  been  attained. 


TITLE  IV. 

OF  EQUITABLE  SUITS. 

ARTICLE  L 

GE]S"ERAL  PEINCIPLES. 

Section  1.  Courts  of  equity  act  on  tlie  person  independently  of 
damages  as  a  remedy.  There  is  no  feature  of  relief  or  remedy, 
afforded  by  the  courts,  of  a  higher  value  than  that  of  acting 
directly  upon  the  person  of  the  party  who  would  deliberately 
violate  his  contracts,  or  invade  the  possessions  of  another.  The 
relief  given  by  a  court  of  equity  may  be  described  as  of  a  posi- 
tive character,  giving  the  specific  thing  which  the  parties  are 
entitled  to,  while  actions  at  law,  with  few  exceptions,  give  only 
the  negative  remedy  of  compensation  by  damages  for  a  depriva- 
tion or  violation  of  the  true  right.  3  Broom  &  Had.  65,  66 ;  id. 
vol.  2,  67,  68,  Wait' s  ed.,  top  page. 

Wherever  possible,  equity  takes  care  that  a  right  shall  be 
actually  enjoyed,  and,  with  this  view,  will  interfere  to  prevent  a 
violation  of  that  right.  A  court  of  law  will  not  interfere  till  the 
violation  be  effected.  It,  for  instance,  will,  when  a  breach  of 
covenant  in  a  lease  or  in  a  contract  between  land  owners  has 
been  committed,  give  damages  for  the  breach ;  but  a  court  of 
equity  will  do  more,  it  will  anticipate  the  event,  and  restrain  a 
person  who  merely  shows  an  intention  to  break  his  covenants. 
Or,  to  take  another  example  illustrating  the  beneficial  result 
obtained  by  such  ready  interference,  damages  will  be  given  in 
the  one  court  if  a  man  has  been  carrying  on  a  trade  in  some 
particular  locality  in  violation  of  his  contract  with  another  man 
not  to  do  so.  But  these  damages,  which  will  be  only  given  for 
past  acts  of  trading,  are,  it  may  be,  of  small  value  as  a  remedy 
compared  with  the  effectual  relief  which  the  other  court  gives 
by  prohibiting  the  trade  on  pain  of  imprisonment.  lb.     The  two 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  21 

kinds  of  justice  wliicli  may  be  obtained,  the  one  strictly  re- 
medial, the  other  preventive,  in  respect  of  the  violation  of  con- 
tinuing rights,  are  clearly  different  in  kind ;  one  is  legal,  the 
other  equitable;  and  neither  of  the  two  courts  will  usurp  the 
functions  of  the  other.  lb. 

A  clear  illustration  of  the  advantages  of  an  equitable  remedy 
over  that  afforded  by  a  common-law  court  may  be  seen  in  the 
case  of  compelling  a  party  to  convey  lands  which  are  situated  in 
another  State.  Gardner  v.  Ogden,  22  N.  Y.  (8  Smith)  327;  Fen- 
ner  v.  Sanborn,  37  Barb.  610;  Bailey  y.  Ryder,  10  N.  Y.  (6  Seld.) 
363;  Newton  v.  Bronson,  13  id.  (3  Kern.)  687.  And  yet  a  com- 
mon-law action  will  not  lie  here  for  a  trespass  upon  real  estate 
lying  in  that  State.  Watts  v.  Kinney,  6  Hill,  82;  Hurd  v.  Mil- 
ler, 2  Hilt.  540;  Mott  v.  Coddington,  1  Abb.  (N.  S.)  290,  1  Rob. 
267;  Wait's  Code,  24,  25,  26. 

In  such  case  the  court  has  no  jurisdiction,  unless  the  person  to 
whom  its  orders  or  decrees  are  addressed  is  within  the  reach  of 
the  court  or  amenable  to  its  jurisdiction.  The  person  must  be 
not  only  within  the  reach  of  the  court  as  to  locality,  but  he  must 
have  such  a  character  as  shall  render  him  personally  amenable 
to  the  jurisdiction. 

The  fact  that  the  orders  and  decrees  of  the  court  operate  im- 
mediately upon  persons  has  had  the  effect  of  giving  the  court  a 
very  extensive  jurisdiction.  As  a  consequence  of  this  rule,  the 
court  may  exercise  jurisdiction  quite  independently  of  the  local- 
ity of  the  act  to  be  done,  provided  the  person  against  whom  re- 
lief is  sought  is  within  the  reach  and  amenable  to  the  process  of 
the  court.  In  exercising  the  jurisdiction,  the  court  does  not  lay 
any  claim  to  the  exercise  of  judicial  or  administrative  rights  in 
a  foreign  country,  but  proceeds  solely  on  the  circumstance  that 
the  person  to  whom  the  order  or  decree  is  addressed  is  within 
reach  of  the  court. 

§  2.  Equity  compels  the  performance  of  acts  specifically.  An- 
other branch  of  the  same  kind  of  positive  relief  is  the  power 
which  the  court  exercises  of  compelling  the  specific  performance 
of  agreements.  A  man  may  be  indirectly  compelled  to  carry 
out  his  contract  by  the  fear  of  being  mulcted  in  damages  by  a 
court  of  law,  in  the  event  of  his  failing  to  do  so;  but  another 
and  often  a  desirable  mode,  is  to  insist  upon  his  performing  the 
duty  which  he  owes  under  the  contract  by  putting  him  in  prison 
till  he  does  so.  3  Broom  &  Had.  67  ;  id.  69,  vol.  2,  Wait's  ed., 
top  page.     See  the  next  preceding  Section. 


22  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 

Rights  which  are  recognized  and  protected,  and  wrongs  which 
are  redressed  by  common-law  courts,  are  called  legal  rights  and 
legal  injuries;  rights  which  are  recognized  and  protected,  and 
wrongs  which  are  redressed  by  courts  of  equity,  are  called  equi- 
table rights  and  equitable  injuries.  The  former  are  said  to  be 
rights  and  wrongs  at  common  law,  and  the  remedies,  therefore, 
are  remedies  at  common  law;  the  latter  are  said  to  be  rights  and 
wrongs  in  equity,  and  the  remedies,  therefore,  are  remedies  in 
equity. 

The  distinction  between  courts  of  common  law  and  courts  of 
equity  will  be  better  understood  by  considering  the  different 
natures  of  the  rights  they  are  designed  to  recognize  and  protect, 
the  different  natures  of  the  remedies  which  they  apply  and  the 
different  natures  of  the  forms  and  modes  of  proceeding  which 
they  adopt  to  accomplish  their  respective  ends. 

In  all  strictly  common-law  courts,  there  are  certain  prescribed 
forms  of  action  to  which  the  party  must  resort  to  furnish  him  a 
remedy;  and,  if  there  be  no  prescribed  form  to  reach  such  a  case 
he  is  remediless;  for  these  courts  do  not  entertain  jurisdiction 
except  in  certain  actions,  and  they  give  relief  according  to  the 
particular  exigency  of  such  actions,  and  not  otherwise.  In  those 
actions  none  but  a  general  and  unqualified  judgment  can  be 
given,  which  is  either  for  the  plaintiff  or  for  the  defendant,  with- 
out any  adaptation  of  it  to  particular  circumstances. 

There  are,  however,  many  cases  in  which  a  simple  judgment 
for  either  party,  without  qualifications,  or  conditions,  or  pecu- 
liar arrangements,  will  not  do  entire  justice  to  either  party.  Some 
modifications  of  the  rights  of  both  parties  may  be  required;  some 
restraints  on  the  one  side  or  on  the  other,  or,  perhaps,  on  both 
sides  ;  some  adjustments  involving  reciprocal  obligations,  or 
duties ;  some  compensatory  or  preliminary,  or  concurrent  pro- 
ceedings to  fix,  control  or  equalize  rights;  some  qualifications  or 
conditions,  present  or  future,  temporary  or  permanent,  to  be 
annexed  to  the  exercise  of  rights,  or  the  redress  of  injuries. 

In  all  these  cases,  courts  of  common  law  cannot  give  the  de- 
sired relief.  They  have  no  forms  of  remedy  adapted  to  the 
objects.  They  can  entertain  suits  only  in  a  prescribed  form,  and 
they  can  give  a  general  judgment  only  in  the  prescribed  form. 
Hence  by  their  very  character  and  organization  the}''  are  incapa- 
}jle  of  furnisliing  the  remedy  which  the  mutual  rights  and  rela- 
tive situations  of  the  parties,  under  the  circumstances,  positively 
require. 


OF  EIGHTS,  REMEDIES  AND  ACTIONS.  23 

But  courts  of  equity  are  not  so  restrained;  although  they  have 
prescribed  forms  of  proceeding,  the  latter  are  flexible,  and  may 
be  suited  to  the  different  postures  of  cases.  They  may  adjust 
their  decrees  so  as  to  meet  most,  if  not  all,  of  these  exigencies; 
and  they  may  vary,  qualify,  restrain,  and  model  the  remedy,  so 
as  to  suit  it  to  mutual  and  adverse  claims,  controlling  equities 
and  the  real  and  substantial  rights  of  all  the  parties'.  Nay, 
more  ;  they  can  bring  before  them  all  parties  interested  in  the 
subject-matter,  and  adjust  the  rights  of  all,  however  numerous, 
whereas,  courts  of  common  law  are  compelled  to  limit  their  in- 
quiry to  the  very  parties  in  the  litigation  before  them,  although 
other  perst)ns  may  have  the  deepest  interest  in  the  event  of  the 
suit.  So  that  one  of  the  most  striking  and  distinctive  features 
of  courts  of  equity  is,  that  they  can  adapt  their  decrees  to  all 
the  varieties  of  circumstances  which  may  arise,  and  adjust  them 
to  all  the  peculiar  rights  of  all  the  parties  in  interest;  whereas, 
courts  of  common  law  are  bound  down  to  a  flxed  and  invariable 
form  of  judgment  in  general  terms,  altogether  absolute,  for  the 
plaintiff,  or  for  tlie  defendant. 

§  3.  Equity  restrains  the  commission  of  wrongful  acts. 
Courts  of  equity  possess  a  power  of  restraining  the  person  in 
relation  to  particular  acts,  which  is  not  only  a  usefnl  but  most 
efficient  remedy.  The  principle  upon  which  the  court  acts  is, 
that  whenever  damage  is  caused  or  threatened  to  property, 
admitted  or  legally  adjudged  to  belong  to  the  plaintiff,  by  an  act 
of  the  defendant,  admitted  or  legally  adjudged  to  be  a  civil 
wrong,  and  such  damage  is  not  adequate! 3^  remediable  at  law, 
the  inadequacy  of  the  remedy  at  law  is  a  sufficient  equity,  and 
will  warrant  an  injunction  against  the  commission  or  coutinn 
ance  of  the  wrong.  And  though  damages  cannot  be  given  in 
equity  for  the  plaintiff's  loss,  yet,  in  some  cases,  if  the  defend- 
ant has  has  made  a  profit,  he  will  be  decreed  to  account.  Adams' 
Eq.  207.     See  ante,  20,  art.  1. 

The  equity  is  not  confined  in  principle  to  any  particular  acts; 
those  in  respect  of  which  it  is  most  commonly  enforced  are  five 
in  number,  viz.:  waste,  destruction,  trespass,  nuisance,  infring- 
ment  of  patent  right,  and  infringment  of  cop3a*iglit. 

There  are  three  incidents  connected  with  this  equity  which 
ought  to  be  mentioned.  The  equity  attaches  only  on  an  admit- 
ted or  legally  adjudged  right  in  the  plaintiff,  admitted  or  legally 
adjudged  to  be  infringed  by  the  defendant;  it  prohibits  the  con- 


24  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 

tinuance  as  well  as  the  commission  of  a  wrong;  and  it  extends 
to  an  account  of  the  defendant's  profit.     Adams'  Eq.  217. 

The  relief  afforded  in  equity  is  either  remedial  or  preventive. 
The  court  either  grants  positive  and  affirmative  relief,  or  restrains 
the  doing  of  acts  which  are  against  equity  and  conscience.  In 
giving  remedial  relief,  the  court  usually  proceeds  by  decree, 
while  preventive  relief  is  administered  by  injunction. 

§  4.  Equity  generally  acts  without  the  aid  of  a  jury.  The  right 
to  trial  by  jury  in  common-law  actions,  as  a  matter  of  course  and 
of  right,  does  not  exist  in  courts  of  equity.  It  is  one  of  the  fun- 
damental rules  of  equity  practice,  that  questions  of  fact  are  to 
be  decided  by  the  court  without  the  intervention  of  a'jury.  And 
from  the  nature  of  the  issues  to  be  tried,  and  the  peculiar  equities 
to  be  administered,  this  mode  of  trial  is  an  advantageous  one.  In 
disposing  of  causes,  a  court  of  equity  does  not  always  render  a 
final  decision  at  once,  as  upon  the  trial  of  a  cause  b}^  a  jury  ;  for, 
there  may  be  numerous  issues  or  facts  to  be  investigated,  before 
a  final  decree  can  be  properly  made.  If  a  preliminary  decree  is 
proper,  it  is  usually  in  such  cases  as  the  following  :  1.  That  in 
the  course  of  the  suit  a  dispute  has  arisen  on  a  matter  of  law, 
which  the  court  is  unwilling  to  decide  ;  2.  That  a  similar  dis- 
pute has  arisen  on  a  matter  of  fact ;  3.  That  the  equity  claimed 
is  founded  on  an  alleged  legal  right,  the  decision  of  which  the 
court  of  chancery  declines  to  assume  ;  and,  4.  That  there  are 
matters  to  be  investigated  which,  although  within  the  province 
of  the  court,  are  such  as  the  presiding  judge  cannot  at  the  hear- 
ing effectually  deal  with.  Adams'  Eq.  375.  To  obviate  these 
impediments  the  preliminary  decree  directs  :  1.  A  case  for  a 
court  of  law;  2.  An  issue  for  a  jury  ;  3.  An  action  at  law,  to 
be  determined  in  the  ordinary  course  ;  or,  4.  A  reference  to  one 
of  the  masters  of  the  court,  to  acquire  and  impart  to  it  the  neces- 
sary information.  lb.  Each  of  these  methods  of  inquiry  may 
be  also  adopted  on  interlocutory  applications  by  motion  or 
petition.  lb. 

§  5.  Relief  is  granted  or  refused  hy  courts  of  equity,  as  justice 
requires.  The  principles  upon  which  the  jurisdiction  of  courts 
of  equity  proceed  are  these,  conscience,  good  faith,'  honesty  and 
equity.  And,  in  the  exercise  of  its  powers,  one  general  maxim 
in  early  times  was,  that  chancery  would  take  cognizance  of  such 
cases  only  as  were  not  remediable  by  the  common  law.  But  this 
jurisdiction  was  not  merely  suppletory,  it  was  also  corrective. 
In  some  cases  it  gave  relief  where  none  could  be  had  at  law  ;  and, 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  25 


in  other  cases  it  interfered  to  relieve  against  proceedings  taken  in 
courts  of  common  law. 

In  equity,  the  term  conscience  originally  embraced  those  obli- 
gations "which  result  when  one  person  is  placed  in  any  situation 
as  regards  another,  that  gives  the  one  a  right  to  expect,  on  the 
part  of  the  other,  the  exercise  of  good  faith  toward  him.  The 
determination  of  cases  according  to  equity^  embraced  all  those 
instances  in  which  a  party,  who  has  not  committed  any  act  con- 
trary to  good  faith  or  conscience,  but  who  may  yet,  according  to 
the  strict  rules  of  positive  law  (which  may,  in  their  general  appli- 
cation, be  founded  on  natural  justice),  or  by  the  silence  of  the 
law  in  not  providing  at  all  for  some  particular  case,  have  an 
advantage  which  it  is  contrary  to  the  principles  of  equity  that 
he  should  enforce  or  retain.  In  such  cases,  a  resort  was  had  to 
the  general  principles  of  equity,  in  the  sense  of  natural  justice, 
which  are  antecedent  to  all  positive  law.  In  proceedings  thus 
founded  upon  right,  justice  and  conscience,  the  court  took  cog- 
nizance of  cases  in  which  there  was  no  remedy  at  law  ;  and  it 
might  also  decline  to  interfere  when  the  claim  made  was  such 
that  a  court  of  equity  could  not,  according  to  its  principles, 
enforce  it ;  and,  as  a  result  of  this  system,  the  court  could  in 
many  cases  grant  or  refuse  the  relief  sought,  according  as  justice 
might  dictate. 

But  a  court  of  equity  will  not  in  any  case  allow  itself  to  be 
made  an  instrument  of  injustice.  And  where  a  court  of  equity 
by  its  interposition  to  prevent  an  act  rightfully  or  wrongfully 
intended,  has  caused  the  loss  of  a  remedy  at  law,  this  court  will 
give  him  a  remedy  equivalent  to  that  from  which  the  interposi- 
tion of  the  court  debarred  him.  Pulteney  v.  Warren^  6  Ves.  73 ; 
Brown  v.  Newall,  2  M.  &  C.  558,  572. 

§  6.  Grants  relief  where  the  law  does  not.  Courts  of  equity 
proceed  upon  the  principle  that  they  will  grant  relief  in  those 
cases  in  which  it  ought  to  be  granted  according  to  equity,  but 
where  no  remedy  is  given  by  the  common  law.  This  omission 
may  arise  in  those  cases  in  which  the  rules  of  the  common  law 
have  made  no  provision  for  a  case  like  the  one  presented  for 
adjudication;  or  it  may  be  that  the  rules  of  practice  of  the  courts 
of  law  do  not  meet  the  requirements  of  the  particular  case,  and 
thus  fail  to  give  any  remedy,  or  a  very  inadequate  one. 

The  remedial  process,  the  pleadings  and  practice  of  courts  of 
equity,  are  all  so  framed  that  the  party  may  obtain  every  relief 
consistent  with  equitable  principles.    And  the  final  remedial  pro- 
VoL.  L— 4 


26  OF  EIGHTS,  KEMEDIES  AND  ACTIONS. 


cess  may  be  so  varied  as  to  meet  the  requirements  of  these  equi- 
ties, in  those  cases  in  which  the  jurisdiction  of  the  court  exists, 
by  commanding  what  is  right,  and  forbidding  what  is  wrong,  and 
then  enforcing  the  decree  made.  A  court  of  equity  has  jurisdic- 
tion in  cases  of  rights,  recognized  and  protected  by  the  muni- 
cipal jurisprudence,  where  a  plain,  adequate,  and  complete 
remedy  cannot  be  had  in  the  courts  of  common  law.  The  remedy 
must  be  plain  ;  for,  if  it  be  doubtful  and  obscure  at  law,  equity 
will  assert  a  jurisdiction.  It  must  be  adequate ;  for  if  at  law  it 
falls  short  of  what  the  party  is  entitled  to,  that  founds  a  juris- 
diction in  equity.  And  it  must  be  complete ;  that  is,  it  must 
attain  the  full  end  and  justice  of  the  case.  It  must  reach  the 
whole  mischief,  and  secure  the  whole  right  of  the  party  in  a  per- 
fect manner,  at  the  present  time,  and  in  future ;  otherwise  equity 
will  interfere  and  give  such  relief  and  aid  as  the  exigency  of  the 
particular  case  may  require.  The  jurisdiction  of  a  court  of 
equity  is,  therefore,  sometimes  concurrent  with  the  jurisdiction 
of  a  court  of  law  ;  it  is  sometimes  exclusive  of  it ;  and  it  is  some- 
times auxiliary  to  it. 

§  7.  Equity  is  governed  by  settled  rules  and  principles.  Courts 
of  equity  had  their  origin  in  the  wants  of  suitors  who  failed  to 
obtain  a  remedy  through  the  aid  of  common-law  courts.  And, 
in  many  instances,  equity  gave  proper  relief  when  the  law  courts 
had  no  means  of  affording  the  desired  and  needed  remedy.  In 
the  contests  between  the  courts  of  law  and  those  of  equity,  at  an 
early  period,  it  was  sometimes  said  that  the  latter  courts  were 
not  governed  by  settled  rules,  but  acted  upon  an  arbitrary  dis- 
cretionary power.  But,  waiving  that  question,  it  is  suflBcient  to 
state,  that  for  a  long  period  the  powers  of  these  courts,  and  the 
rules  and  principles  upon  which  they  proceed,  are  as  well  set- 
tled as  those  of  the  common-law  courts. 

The  object  of  a  court  of  equity  was  to  afford  relief  in  those 
cases  in  which  no  legal  relief  was  attainable.  But  it  has  also 
been  said  that  it  was  the  business  of  a  court  of  equity  to  abate 
the  rigor  of  the  common  law ;  and,  while  it  may  be  conceded 
that,  in  some  cases,  the  interference  of  a  court  of  equity  has  had 
this  effect,  yet  all  the  rules  of  the  common  law  which  equity  has 
taken  upon  itself  to  overrule  have  long  since  been  well  defined, 
and  many  of  them  have  ceased,  even  at  common  law,  to  govern 
the  judgments  of  tlie  courts.  3  Broom  &  Had.  64;  id.  vol.  2, 
p.  58,  Wait's  ed.  The  educational  course,  which  courts  of  equity 
seem  to  have  furnished  to  courts  of  law,  has  been  long  so  far 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  27 

completed,  that  no  new  doctrines  in  equity  opposed  to  the  rules 
or  doctrines  of  courts  of  law  have  been  established.  lb.  55.  Nor 
does  equity,  even  now,  profess  to  criticise  or  review  decisions  of 
courts  of  law;  moreover,  it  does  not,  and  never  did,  interfere  to 
mitigate  the  severity,  where  any  exists,  of  rules  of  positive  law. 
There  are,  however,  some  of  the  early  cases  in  which  equity  has 
very  nearly,  if  it  has  not  absolutely,  overridden  positive  law  ; 
and  those  cases  relating  to  the  statute  of  frauds  serve  as  well  as 
any  to  show  how  far  the  power  has  been  exercised.  lb.  56. 

There  are  certain  principles,  on  which  courts  of  equity  act, 
which  are  very  well  settled.  The  cases  which  occur  are  various, 
but  they  are  decided  on  fixed  principles.  Courts  of  equity  have, 
in  this  respect,  no  more  discretionary  power  than  courts  of  law. 
They  decide  new  cases  as  they  arise  by  the  principles  on  which 
former  cases  have  been  decided,  and  may  thus  illustrate  or 
enlarge  the  operation  of  those  principles  ;  bat  the  principles  are 
as  fixed  and  certain  as  the  principles  on  which  the .  courts  of 
common  law  proceed.    Bond  v.  Hopkins,  1  Sch.  &  Lefr.  428,  429. 

This  application  of  existing  principles  to  new  cases  as  they  arise 
is  not  peculiar  to  courts  of  equity  ;  for  the  common-law  courts 
are  daily  engaged  in  adding  to  the  principles  of  the  old  jurispru- 
dence, and  in  enlarging,  illustrating  and  applying  legal  maxims 
and  rules. 

§  8.  Equity  devises  new  remedies.  The  numerous  cases  in 
which  equity  interfered  and  granted  relief  where  none  was  given 
before  has  given  rise  to  the  opinion  that  courts  of  equity  devise 
new  remedies.  When  it  is  said  that  equity  grants  relief,  while 
at  law  the  complaining  party  was  remediless,  it  might  seem  like 
a  new  remedy  ;  and  yet,  it  will  be  remembered  that  such  relief 
was  in  accordance  with  well-settled  principles  of  equity.  But, 
even  if  it  were  assumed  that  courts  of  equity  did,  at  an  early  day, 
exercise  the  power  mentioned,  it  must  be  remembered  that  this 
court  is  now  as  much  controlled  by  general  laws  as  any  other 
court.  And  while  it  is  proper  that  all  courts  should  freely  exer- 
cise their  powers  for  the  advancement  of  justice,  it  is  the  part  of 
wisdom  and  of  safety  for  all  courts  to  keep  clearly  within  the 
limits  of  their  jurisdiction  ;  and,  if  additional  powers  are  required, 
to  leave  that  matter  with  the  legislature.  It  is  province  of  the 
statesman,  not  of  the  lawyer,  to  discuss,  and  of  the  legislature  to 
determine,  what  is  best  for  the  public  good,  and  to  provide  for  it 
by  proper  enactments.  It  is  the  province  of  the  judge  to  expound 
the  law  only :   the  written,   from  the  statutes ;  the  unwritten 


28  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

law  from  the  decisions  of  his  predecessors,  and  of  the  existing 
courts,  or  from  text  writers  of  acknowledged  authority,  and  upon 
the  principles  to  be  clearly  deduced  from  them  by  sound  reason 
and  just  inference  ;  it  is  not,  however,  the  duty  of  a  judge  to 
speculate  upon  what  may  be  most,  in  his  opinion,  for  the  advan- 
tage of  the  community.  Broom's  Com.  Law,  5,  6.  See  ante^  5, 
art.  1,  §  1.  Western  Counties  Manure  Co.  v.  Lawes  Chemical 
Manure  Co.,  L.  R.,  9  Exch.  222,  223;  §§10,  Eng.  Rep.  394,  395. 

§  9.  Mode  of  relief  diifers  more  than  principles  of  law.  The 
law  speaks  but  one  language,  for  all  courts,  in  reference  to  the 
legal  rights  of  the  parties  involved  in  a  litigation.  But,  in  mat- 
ters of  mere  practice,  there  is  a  wide  difference  between  courts  of 
equity,  and  those  of  law,  and,  in  many  instances,  it  is  the  sole 
difference  to  be  considered  by  the  party  seeking  to  have  his 
rights  determined  by  a  court. 

§  10.  General  rules  and  maxims  of  equity.  In  actions  at  law, 
every  party  may  stand  upon  his  strict  legal  rights,  and  the  court 
is  bound  to  give  the  remedy  which  the  law  has  provided.  In 
courts  of  equity,  there  are  some  rules  and  maxims  which  seem 
more  like  the  exercise  of  a  discretionary  power,  as  they  doubtless 
are  in  some  instances. 

First.  If  equity  once  had  jurisdiction  of  the  subject-matter 
because  there  is  no  remedy  at  law,  or  because  that  remedy  is  in- 
adequate, it  does  not  lose  the  jurisdiction  merely  because  the 
courts  of  law  afterward  give  the  same  or  a  similar  relief. 

Second.  Equity  follows  the  law.  This  is  true  as  a  general 
maxim.  Equity  follows  the  law,  except  in  relation  to  those 
matters  which  give  a  title  to  equitable  relief  because  the  rules  of 
law  would  operate  to  sanction  fraud  or  injustice  in  the  particular 
case. 

Tfiird.  Where  there  is  equal  equity  the  law  must  prevail. 
The  ground  upon  which  the  suitor  comes  into  a  court  of  equity 
is  that  he  is  entitled  to  relief  there.  But,  if  his  adversary  has 
an  equally  equitable  case,  the  complainant  has  no  title  to  relief, 
and  the  court  will  not  interfere  on  either  side. 

Fourth.  Equality  is  equity.  This  rule  is  applied  to  cases  of 
contribution,  apportionment  of  moneys  due  among  those  liable 
to,  or  benefited  by  the  payment,  or  abatement  of  claims  on 
account  of  deficiency  of  the  means  of  payment,  etc. 

Fifth.  He  who  seeks  equity  must  do  equity.  A  party  cannot 
claim  the  interposition  of  the  court  for  relief  unless  he  will  do 


OF  EIGHTS,  REMEDIES  AND  ACTIONS.  29 

what  is  equitable  should  be  done  by  Mm  as  a  condition  prece- 
dent to  that  relief. 

Sixth.  Equity  considers  as  done  that  which  ought  to  have  been 
done.  The  illustration  of  this  rule  will  be  found  in  works  upon 
equity. 

SeventTi.  He  who  has  committed  iniquity  shall  not  have 
equity.  As  in  cases  of  illegal  contract,  or  where  a  party  has 
pat  his  property  out  of  his  hands  to  defraud  his  creditors,  a 
court  of  equity  will  not  restore  the  party  to  his  former  condition. 

Eighth.  Equity  suffers  not  a  right  without  a  remedy.  This 
maxim  is  generally,  though  not  universall}^,  true. 

Ninth.  When  the  equities  are  equal  in  other  respects,  he  who 
is  first  in  point  of  time  will  secure  the  advantage.  But  if  the 
equities  are  unequal,  preference  will  be  given  to  the  superior 
equity. 

Tenth.  The  fund  which  has  received  the  benefit  should  make 
satisfaction.  Again,  satisfaction  should  be  made  to  that  fund 
which  has  sustained  the  loss. 

Eleventh.  Equity  acts  upon  the  person.  This  maxim  has  been 
explained  ante,  20,  art.  1. 

Some  of  the  principal  distinctions  between  legal  actions  and 
equitable  suits  having  been  thus  briefly  noticed,  our  next  inquiry 
will  relate  to  the  effect  of  the  union  of  legal  and  equitable  reme- 
dies which  are  now  administered  by  the  same  courts  in  both 
classes  of  cases. 


TITLE  V. 

THE  UNTON"  OF  LEGAL  AND  OF  EQUITABLE  REMEDIES. 

ARTICLE  I. 

GENERAL   PRINCIPLES. 

Section  1.  Mode  of  iiuitiug  the  two  systems.  Under  the  for- 
mer English  system,  courts  of  law  and  courts  of  equity  were 
separate  and  distinct  organizations,  each  of  which  administered 
the  rules  of  law,  or  the  principles  of  equity,  according  to  a  long- 
established  practice. 

The  general  adoption  of  this  system  in  many  of  the  States  of 
the  Union  is  familiar  to  every  student.  In  this  State  there  were 
formerly  courts  of  law,  and  also  a  court  of  chancery,  both  of 


30  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

which  had  existed  from  an  early  period,  and  they  continued  to 
exist  down  to  the  year  1846. 

By  the  constitution  of  1846,  it  was  provided  by  article  6,  sec- 
tion 3  :  "  There  shall  be  a  supreme  court  having  general  juris- 
diction in  law  and  equity."  In  accordance  with  this  provision, 
the  legislature  enacted  a  law,  declaring  that  the  Supreme  Court, 
organized  under  this  constitution,  should  have  the  same  powers 
and  exercise  the  same  jurisdiction  as  that  possessed  and  exer- 
cised by  the  Supreme  Court  or  the  Court  of  Chancery  of  this 
State.     Laws  1847,  ch.  280,  §  16. 

By  section  69  (62)  of  the  Code,  the  distinction  between  actions 
at  law,  and  suits  in  equity,  and  all  the  forms  of  such  actions  or 
suits  were  abolished;  and  but  one  form  of  civil  action,  for  the 
enforcement  or  protection  of  private  rights,  or  the  redress 
of  private  wrongs,  was  recognized. 

The  object  of  these  changes  was,  to  obviate  many  of  the  incon- 
veniences arising  from  a  double  system  of  practice,  and  also  to 
simplify  the  proceedings  in  all  the  courts. 

The  principles  of  the  common  law  were  generally  plain,  sim- 
ple, few  in  number,  and  unbending  in  many  instances  to  suit  the 
exigencies  of  the  particular  case  to  be  decided.  The  result  was 
sometimes  inconvenient,  if  not  unjust,  and  for  this  reason  the 
court  of  chancery  was  established  for  the  purpose  of  softening 
the  rigor  of  the  common  law,  and  for  doing  complete  justice  by 
means  of  forms  of  proceeding  peculiar  to  itself.  But  even  this 
system  of  a  double  court,  with  separate  forms  of  proceeding,  did 
not  prevent  the  existence  of  some  inconveniences;  and,  for  the 
purpose  of  securing  all  the  advantages,  and  avoiding  all  the 
inconveniences  of  the  former  systems,  the  present  system  of 
blending  law  and  equity  practice  was  adopted  in  this  State. 

§  2.  Principles  of  law  and  equity  unchanged.  It  will  be  re- 
membered that  the  matters  under  considei'ation  relate  to  the 
practice  of  the  courts,- and  not  to  the  general  rules  of  law,  nor  to 
the  principles  of  equity,  by  which  rights  are  to  be  decided,  or 
wrongs  redressed.  The  rules  of  law  will  remain  unchanged, 
whether  they  are  enforced  by  a  court  having  nothing  but  a  com- 
mon-law jurisdiction,  or  by  a  court  of  equity,  or  by  a  court  ex- 
ercising both  a  legal  and  an  equitable  jurisdiction. 

"  Although  the  Code  has  abolished  all  distinctions  between  the 
mere  forms  of  action,  and  every  action  is  now  in  form  a  special 
action  on  the  case,  yet  actions  vary  in  their  nature,  and  there  are 
intrinsic  differences  between  them  which  no  law  can  abolish 


OF  EIGHTS,  EEMEDIES  AIN^D  ACTIONS.  31 

It  is  impossible  to  make  an  action  for  a  direct  aggression  upon 
the  plaintiffs  rights  by  taking  and  disposing  of  his  property, 
the  same  thing,  in  substance  or  in  principle,  as  an  action  to 
recover  for  the  consequential  injury  resulting  from  an  improper 
interference  with  the  property  of  another,  in  which  he  has  a  con- 
tingent or  prospective  interest.  The  mere  formal  differences 
between  such  actions  are  abolished.  The  substantial  differences 
remain  as  before.  The  same  proof,  therefore,  is  required  in  each 
of  these  same  kind  of  actions  as  before  the  Code,  and  the  same 
rule  of  damages  applies.  Hence,  in  an  action  in  which  the  plain- 
tiff establishes  a  right  to  recover,  upon  the  ground  that  the 
defendant  has  wrongfully  converted  propertj^,  to  the  possession 
of  which  the  plaintiff  was  entitled  at  the  time  of  the  conversion, 
the  proper  measure  of  damages  still  is  the  value  of  the  property ; 
while  in  an  action  in  wliich  the  plaintiff  recovers,  if  at  all,  upon 
the  ground  that  the  defendant  has  so  conducted  himself  in  the 
exercise  of  a  legal  right  in  respect  to  another's  property,  as 
unnecessarily  and  improperly  to  reduce  the  value  of  a  lien, 
which  the  plaintiff  could  only  enforce  at  some  subsequent  day, 
the  damages  must,  of  course,  depend  upon  the  extent  to  which 
that  lien  has  been  impaired."  Ooulet  v.  Asseler,  22  N.  Y.  (8 
Smith)  228,  229,  Selden,  J. 

The  union  of  the  two  systems  of  law  and  equity  practice  has 
not  enlarged  the  powers  of  the  new  court,  either  as  to  legal  or 
equitable  jurisdiction  ;  in  relation  to  the  rights  which  they  may 
declare ;  or  the  remedies  which  they  may  enforce.  And  where 
an  injunction  could  not  have  been  granted  under  the  former 
practice  by  the  old  court  of  chancery,  it  cannot  now  be  granted 
by  the  new  court,  because  the  equitable  jurisdiction  of  the  courts 
is  not  enlarged  by  the  union  of  legal  and  equitable  powers  in  one 
court,  nor  by  the  provisions  of  the  Code.  JVew  Tori'  Life  Ins. 
Co.  V.  Supervisors  of  New  TorJc,  4  Duer,  192  ;  1  Abb.  250. 

An  action  of  trover  could  not  have  been  maintained  under  the 
former  practice  without  proof  of  an  unlawful  detention  or  a  con- 
version of  the  property  ;  and  under  the  Code  this  proof  is  equally 
essential.  Eldridge  v.  Adams,  54  Barb.  417 ;  Hale  v.  Omaha 
National  BanJc,  7  J.  &  Sp.  207  ;  see  Goulet  v.  Asseler,  22  N.  Y. 
(8  Smith)  225.  Although  the  Code  abolished  the  forms  of  actions, 
yet  the  principles  by  which  the  former  actions  were  governed 
still  remain,  and  control  as  much  now  as  formerly  in  determining 
the  rights  of  parties.  lb.     See  ante. 

The  abrogation  of  the  distinction  between  actions  at  law  and 


32  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

suits  in  equity,  by  enacting  that  there  should  be  but  one  form  of 
action,  which  should  be  called  "a  civil  action,"  did  not  obliterate 
the  distinction  between  the  two  sorts  of  proceedings,  so  far  as 
the  federal  courts  are  concerned.  Thompson  v.  Railroad  Com- 
panies^ 6  Wall.  134.  And,  if  a  civil  action  is  brought  in  a  State 
court,  and  it  is  essentially  a  common-law  action,  then  the  com- 
mon-law form,  and  not  an  equitable  one,  must  be  pursued  if  the 
case  is  removed  into  a  federal  court.  lb.  An  action  in  a  com  ■ 
mon-law  form  cannot  be  prosecuted  in  a  State  court  up  to  the 
removal  of  the  cause  to  a  federal  court,  and  then  have  the  form 
of  the  action  changed  into  that  of  a  suit  in  equity.  lb.  If  the 
'  original  form  of  the  action  was  in  accordance  with  the  practice 
of  the  State  courts,  no  change  will  be  necessary  on  the  removal 
of  the  cause,  as  the  federal  courts  will,  in  such  cases,  adopt  and 
apply  the  practice  of  the  State  courts.  lb.  But  this  adoption  of 
the  State  practice  is  not  to  be  understood  as  confounding  the 
principles  of  law  and  equity,  nor  as  authorizing  legal  and  equi- 
table claims  to  be  blended  together  in  one  suit.  lb. 

§  3.  Joinder  of  actions,  whether  legal  or  equitable.  Under  the 
former  system,  a  party  sometimes  erred  in  the  choice  of  a  court 
in  which  to  obtain  a  remedy ;  and  the  result  was  delay  and 
expense,  if  no  other  loss  ensued.  A  party  who  instituted  a  suit 
in  equity,  when  his  remedy  was  at  law,  was  turned  out  of  that 
court  to  begin  again  ;  and  the  same  was  true,  when  an  action 
was  brought  at  law  in  a  case  where  equity  afforded  the  only  relief. 
As  the  courts  of  this  State  are  now  organized,  where  the  same 
judge  presides  in  all  cases  presented  for  adjudication,  no  one  can 
be  turned  out  of  the  supreme  court  upon  the  ground  that 
his  action  was  commenced  in  the  wrong  court.  But,  before 
noticing  what  causes  of  action  may  be  joined,  it  ought  to  be 
mentioned  that  the  rules  of  law  and  the  principles  of  equity  have 
not  been  changed  or  blended,  even  when  legal  and  equitable 
remedies  are  both  sought  in  a  single  action.  Formerly,  an  action 
at  law  and  a  suit  in  equity  were  both  essential,  in  some  cases,  if 
full  justice  was  done  to  both  parties.  But  by  the  present  system, 
it  is  intended  that  one  action  shall  attain  the  same  result,  with 
less  delay,  expense  or  difficulty  than  under  the  old  practice.  The 
former  courts  of  law  and  the  old  court  of  chancery  each  had  a 
separate  jurisdiction,  and  each  had  a  system  of  practice  which 
differed  materially  from  that  of  the  other.  The  present  system 
adopts  the  same  practice  for  all  classes  of  actions,  or  of  remedies, 
so  far  as  that  result  is  practicable.  And,  in  reference  to  the  mode  of 


OF  RIGHTS,  KEMEDIES  AND  ACTIONS.  33 

commencing  actions  ;  the  general  mode  of  pleading ;  the  practice 
on  the  trial ;  the  mode  of  entering  judgments  and  of  enforcing 
them ;  and  even  the  remedy  by  appeal ;  there  is  much  that  is 
alike,  and  where  there  is  a  difference,  it  is  in  those  matters  which 
are  required  by  the  nature  of  the  action.  But  while  many  of  the 
proceedings  and  forms  will  be  the  same,  whether  the  remedy 
sought  be  legal  or  equitable,  there  will  be  some  proceedings  and 
forms  required  in  some  classes  of  actions,  which  would  not  be 
appropriate  in,  nor  would  they  be  adapted  to,  the  other.  The  same 
judge  may  hear  an  action  at  law  or  a  suit  in  equity,  and  either 
action  may  be  commenced  by  a  summons  ;  but,  even  in  such  a 
case,  there  will  be  some  difference  in  the  form  of  the  summons. 
Again,  an  action  upon  a  promissory  note  may  require  many  pro- 
ceedings, which  are  essentially  like  those  in  a  suit  in  equity,  for 
the  adjustment  of  complicated  equities ;  but  yet  there  are,  and 
there  always  must  be,  differences  in  the  mode  of  conducting  these 
actions.  And  it  will  be  found,  on  a  careful  examination,  that,  ex- 
cept in  the  uniformity  of  general  proceedings  already  mentioned, 
the  courts  adopt  the  equity  practice  in  equitable  suits  and  pro- 
ceedings, and  those  of  the  common-law  practice  in  actions  at  law. 
In  most  actions  of  a  legal  nature  the  issues  are  few  and  simple, 
and  readily  disposed  of  by  a  jury  ;  but,  in  an  intricate  equity 
euit,  there  are  many  matters  which  no  jury  could  possibly  dispose 
of  in  a  proper  manner.  In  such  cases,  the  practice  in  each  action 
must  be  such  as  is  appropriate  under  the  circumstances ;  and, 
while  pursuing  such  a  mode,  it  does  not  interfere  with  the  afore- 
said principle,  that  the  practice  in  actions  at  law  and  in  suits  in 
equity  have,  so  far  as  practicable,  been  united.  The  object  in 
blending  them  was  to  secure  as  great  uniformity  as  was  attainable, 
but  it  was  not  considered  any  less  important  to  retain  all  the  advan- 
tages of  both  systems,  and  to  use  them  whenever  the  ends  of 
justice  and  the  objects  of  the  law  would  be  best  subserved. 
Uniformity  in  the  practice  is  not  to  be  limited  to  an  attempt  to 
reduce  every  kind  of  action  to  one  form  of  proceeding,  nor  will 
it  be  secured  by  applying  the  same  rules  of  proceeding  in  every 
case.  In  equitable  actions  there  are,  in  nearly  all  cases,  many 
steps  to  be  taken  which  would  not  be  proper  in  an  action  at  law, 
and  yet  they  are  indispensable  in  equity  proceedings.  This  dif- 
ference does  not  in  any  manner  interfere  with  the  general  rules 
of  practice,  which  are  equally  applicable  to  either  class  of  ac- 
tions. Consistency  in  relation  to  joining  actions  at  law  and  suits 
in  equity  does  not  require  that  the  practice  should  be  uniform  in 

Vol.  I. -5 


34  OF  RIGHTS,  REMEDIES  AIS^D  ACTIONS. 

all  particulars,  for  that  is  plainly  impracticable.  When  as  great 
nniformity  as  is  practicable  is  attained,  all  the  advantages  of 
blending  the  two  systems  will  have  been  secured.  And  the  next 
important  step  will  be  to  adopt  a  uniform  and  harmonious  prac- 
tice in  relation  to  each  class  of  actions,  whether  legal  or  equita- 
ble. And  it  is  just  here  that  some  of  the  most  perplexing  ques- 
tions have  arisen.  The  present  practice  is  much  of  it  founded 
upon  statutes,  and  the  difference  of  opinion  among  judges  in 
construing  them  has  been  greatly  increased  by  the  large  number 
of  judges  who  have  decided  the  various  questions  as  they  arose 
in  the  course  of  actions.  Material  differences  in  the  minds  of 
the  judges,  and  of  their  various  modes  of  study  and  practice, 
in  addition  to  the  fact  that  many  cases  were  decided  without  the 
aid  of  previous  decisions,  which  were  not  then  reported,  have 
all  tended  to  increase  the  number  of  contradictory  adjudications. 
These  inconveniences  had,  however,  some  corresponding  advan- 
tages; for,  if  each  judge  had  decided  all  his  cases  without  the 
aid  of  previous  decisions,  there  would  remain  the  advantage  of 
his  own  unbiased  judgment,  acting  independently  of  authority, 
and  thus  securing  the  reasoning  of  a  strong  mind  after  a- thorough 
examination  of  the  case.  Conflicting  decisions  upon  the  same 
question  are  a  serious  inconvenience  in  the  practice,  and  they 
have  been  somewhat  the  cause  of  incongruities  in  the  practice. 
But  much  of  this  evil  may  now  be  avoided,  for  it  may  be  safely 
said,  that  most  of  the  difficult  questions  in  the  practice  are  now 
settled  by  a  clear  current  of  authority. 

In  some  instances  the  true  rule  is  so  well  settled  that  no  one 
would  question  what  the  rule  is.  In  other  cases,  there  may  be  a 
conflict  in  the  authorities,  but  even  these  cases  are  less  numerous 
than  one  might  imagine  on  a  first  thought;  and,  after  a  careful 
examination  of  all  the  authorities  and  the  statutes,  the  true  rule 
may  be  discovered,  and  a  harmonious  system  laid  down  for  the 
convenience  of  the  student,  the  profession  and  the  courts. 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  35 

TITLE  VI.  ' 

OF  THE  EIGHT  OF  ACTION. 

ARTICLE  L 

IS  A   KEMEDY  GIVE]Sr  BY  LAW. 

Section  1.  In  generaL  The  present  work  was  intended  to 
furnish  information  as  to  the  rights  of  action,  and  as  to  the 
grounds  of  defense;  but  not  to  treat  fully  the  mode  of  prosecut- 
ing or  defending  actions,  or  other  proceedings  in  the  courts  of 
record.  The  rights  of  person  and  of  property  are  numerous 
and  frequently  in  conflict,  and  the  injuries  done  to  them  are  fre- 
quent and  serious.  To  learn  with  certainty  whether  the  com- 
plaining party  has  any  remedy,  either  at  law  or  in  equity,  is 
sometimes  quite  difficult.  And,  for  that  reason,  the  first  inquiry 
which  naturally  arises  on  the  statement  of  the  case  is,  whether 
an  action  or  legal  proceeding  can  be  maintained.  It  is  generally 
difficult  to  lay  down  any  general  rule  which  has  no  exceptions. 
And,  as  an  illustration  of  this,  it  may  be  said,  as  a  general  rule, 
that  there  is  no  wrong  without  a  remedy,  and,  again,  there  is  no 
right  without  a  remedy,  for  the  want  of  a  right  and  the  want  of 
a  remedy  are  reciprocal.  Yet,  there  are  injuries  for  which  the 
law  does  not  furnish  any  remedy. 

In  every  proceeding  in  a  court  of  justice  the  object  is,  or  ought 
to  be,  the  establishment  or  recovery  of  a  right,  or  the  prevention 
of  a  wrong,  or  to  furnish  redress  for  the  wrong  if  already  com- 
mitted. And  no  one  can  properly  resort  to  a  court  of  justice 
until  his  right  has  been  disputed,  infringed  upon,  or  threatened 
by  a  wrongful  act,  for  it  is  the  injury  done  to  him  which  con- 
fers on  the  party  wronged  a  right  to  demand  that  redress  which 
the  law  gives  for  the  injury  sustained. 

Before  instituting  an  action,  the  first  question  is,  whether,  upon 
all  the  facts  that  can  be  established,  any  remedy  can  be  had, 
either  of  a  legal  or  equitable  nature.  If  this  inquiry  is  deter- 
mined in  the  negative,  the  matter  is  at  an  end.  But  if  answered 
in  the  affirmative,  then  other  considerations  will  be  weighed 
before  proceeding  in  the  matter. 

Where  a  party  has  a  legal  right  to  do  a  particular  act,  the 
motive  with  which  he  may  assert  his  right  will  not  give  a  right 


36  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

of  action  even  wliere  malice  prompted  the  act.  Mohan  v.  Brown, 
13  Wend.  261 ;  Auburn  &  Cato  PlanTc  Road  Co.  v.  Douglass, 
9  N.  Y.  (5  Seld.)  444  ;  Chatfleld  v.  Wilson,  28  Vt.  49  ;  Occum  Co. 
V.  Sprague  Manuf.  Co.,  34  Conn.  530  ;  Stevenson  v.  NewnJiam, 
13  C.  B.  285.  When  malicfe  will  be  considered,  see  Lumley  v. 
Gye,  2  Ell.  &  Bla.  216  ;  Cottrell  v.  Jones,  11  C.  B.  713. 

The  consent  of  a  party  to  an  act  is  generally  a  bar  to  an  action 
for  any  injury  sustained  in  consequence.  Illinois  Central  R.R. 
Co.  V.  Allen,  39  111.  205 ;  State  v.  Beck,  1  Hill  (S.C.),  363  ;  Billow 
V.  Buslinell,  5  Barb.  156.  And  see  Broom's  Legal  Maxims,  201. 
Volenti  nonfit  injuria.     See  "  Contributory  Negligence." 

§  2.  Are  there  sufficient  existing  facts.  No  part  of  the  practice 
presents  greater  difficulties,  or  furnishes  sharper  conflicts  than 
the  establishment  of  the  facts  claimed  by  the  respective  parties 
to  exist,  and  to  be  precisely  as  each  party  claims  they  are.  One 
of  the  most  important  questions,  then,  is  to  settle  whether  there 
are  such  iacts  as  the  complaining  party  alleges.  And,  before 
considering  any  other  point,  the  first  investigation  will  be  as  to 
the  actual  existence  of  the  alleged  facts.  If  it  is  doubtful  whether 
the  facts  ever  really  existed,  this  difficulty  may  be  insuperable. 
Again,  let  it  be  supposed  that  the  facts  once  really  existed,  but 
that  at  the  present  time  they  cannot  be  established  by  proof ;  in 
such  a  case,  it  must  be  recollected  that  where  the  court  cannot 
take  judicial  notice  of  a  fact,  it  is  the  same  as  if  the  fact  had  no 
existence.  In  the  next  place,  let  it  be  assumed  that  the  facts 
once  existed,  and  that  some  proof  thereof  may  be  made,  the 
next  inquiry  will  be  whether  the  opposite  party  is  able  to  adduce 
satisfactory  countervailing  proofs,  and,  in  that  case,  to  determine 
whether,  for  all  practical  purposes,  the  facts  are  not  really  the 
same  as  though  they  were  non-existent. 

One  further  consideration  ought  not  to  be  overlooked,  and  that 
is  in  relation  to  the  preservation  or  perpetuation  of  evidence 
which  may  now  be  attainable,  but  which  may  be  lost  by  the 
death  of  a  single  witness,  or  the  destruction  of  some  important 
document.  In  every  such  case  there  ought  not  to  be  any  delay 
in  taking  such  steps  as  will  preserve  the  evidence. 

An  action  does  not  lie  against  two  persons  for  conspiring 
together,  maliciously  and  vexatiously,  and  without  reasonable 
or  probable  cause,  to  commence,  and  for  commencing,  an  action 
against  the  plaintiff,  in  the  name  of  a  third  person,  but  for  their 
own  benefit,  without  there  is  an  allegation  of  legal  damages 
resulting  to  the  plaintiff  therefrom.     Cotterell  v.  Jones^  11  C.  B. 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  37 

713.  Whether  or  not  it  will  lie  with  such  an  allegation  —  quere. 
lb.  See  2  R.  S.  551,  §  1 ;  Craig  v.  Twomey,  14  Gray,  486.  An 
action  brought  in  the  name  of  another  person,  without  his 
authority,  is  a  groundless  and  unlawful  suit ;  and  for  the  dam- 
age done  to  the  defendant  in  such  suit,  he  may  recover  against 
the  person  by  whom  it  was  brought,  Foster  v.  Dow^  29  Maine, 
44*2. 

§  3.  Actions  for  injuries  to  person  or  personal  rights.  The 
numberless  injuries  which  may  be  done  to  the  person,  or  to  per- 
sonal rights,  have  furnished  materials  for  a  vast  collection  of 
large  volumes  ;  and  a  resort  must  be  had  to  them  and  to  the 
reports  and  statutes  for  further  information.  Two  inquiries  ought 
always  to  be  made  and  satisfactorily  answered,  before  institut- 
ing an  action.  First.  Are  the  facts  such  that,  upon  the  whole 
case,  independently  of  any  defense,  the  law  will  give  a  right  of 
action  ?  Secondly.  Can  the  defense  establish  facts  which  will 
constitute  a  complete  answer  or  bar  to  the  action,  by  showing  a 
legal  excuse  or  justification  for  the  acts  done  \  These  questions 
may  not  always  be  easy  to  dispose  of,  but  their  examination  is 
an  imperative  duty. 

§  4.  Actions  relating  to  property,  real  or  personal.  This  sub- 
ject, like  the  last  preceding  one,  is  so  vast  that  nothing  more  will 
be  done  in  this  place  than  to  remind  the  student  of  the  import- 
ance of  a  thorough  knowledge  of  the  law  relating  to  such  prop- 
erty. There  is  no  mode  by  which  a  title  to  it  can  be  acquired 
that  may  not  be  a  subject  of  investigation.  There  is  no  wrong 
which  can  be  done  to  it  which  may  not  need  the  aid  of  the  courts. 
And  there  is  no  contract  which  can  be  made  in  relation  to  it  that 
may  not  become  a  subject  of  inquiry. 

If  the  inquiry  involves  a  question  of  title,  then  it  will  be  nec- 
essary to  examine  the  particular  kind  of  title,  which  is  claimed 
to  exist.  If  the  right  of  possession  is  in  dispute,  this  question 
may  require  much  labor  to  solve  it.  If  the  action  be  for  a  wrong 
done  to  such  property,  the  right  of  the  complainant  thereto,  his 
right  of  possession  at  the  time  of  the  injury,  and  the  right  of  the 
defendant  to  do  the  acts  complained  of,  may  all  become  import- 
ant. In  brief,  nothing  that  relates  to  the  title,  the  right  of  posses- 
sion, or  the  claim  made  by  the  defendant,  is  to  be  overlooked. 

Fraud  in  obtaining  personal  property  is  a  wrong  to  property, 
for  which  an  action  lies  as  clearly  as  for  a  wrongful  taking  or 
conversion  of  it.     Cleveland  v.  Barroios,  59  Barb.  364. 


38  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

§  5.  Actions  founded  upon  contracts.  Some  of  the  most  im- 
portant interests  in  society  are  based  upon  contracts,  express  or 
implied,  and  as  actions  are  daily  brought  for  the  breach  of  such 
contracts,  so  the  whole  law  on  that  subject  must  be  a  constant 
subject  of  investigation.  Some  few  elements  of  contracts  must 
always  be  kept  in  view  investigating  rights  claimed  to  be  founded 
upon  contract.  There  must  be  a  subject-matter  of  the  con- 
tract ;  a  sufficient  legal  consideration ;  an  assent  given  by  parties 
legally  competent ;  an  agreement,  express  or  implied,  to  do  or 
omit  some  specified  or  understood  thing  ;  the  contract  must  be 
executed  in  due  form  of  law,  and  it  must  not  be  illegal  in  its 
nature  or  provisions.  Some  one  or  more  of  these  matters  require 
attention  in  every  case  where  a  remedy  is  claimed  by  virtue  of  a 
contract,  or  where  a  defense  resting  on  contract  is  interposed. 
§  6.  Actions  founded  upon  torts.  The  infinite  variety  of  in- 
juries which  may  be  done  to  person,  to  personal  rights,  or  to 
property,  real  or  personal,  affords  a  wide  field  of  investigation 
as  to  rights  and  remedies.  It  would  be  an  endless  task  to  enu- 
merate all  the  wrongs  of  which  the  law  takes  cognizance,  and 
in  respect  of  which  redress,  in  the  shape  of  compensation  in 
damages,  is  afforded.  Assuming  that  due  attention  will  be  gi^^en 
to  those  cases  in  which  an  action  will  lie  if  the  proper  facts  are 
established,  it  will  next  be  important  to  point  out  some  of  the 
cases  in  which  no  action  can  be  maintained,  even  in  cases  in 
which  it  is  clear  that  one  party  has  sustained  damages  from  the 
acts  or  omissions  of  another. 

To  constitute  an  actionable  tort,  the  general  rule  is,  that  there 
must  be  an  actual  or  legal  damage  to  the  plaintiff,  and  a  wrong- 
ful act  by  the  defendant.  But,  notwithstanding  this,  one  person 
may  sustain  a  serious  injury  at  the  hands  of  another,  as  in  the 
case  of  an  inevitable  accident  {Harmy  v.  Dunlop,  Hill  &  Denio, ' 
193 ;  Bennett  v.  Ford,  4n  Ind.  264 ;  Brown  v.  Collins,  53  N.  H. 
442  ;  16  Am.  Rep.  372  ;  Holmes  v.  Mather,  Law  Rep.,  10  Exch.  261), 
or  a  lawful  act  done  in  a  lawful  manner,  without  any  carelessness 
or  negligence,  in  which  cases  there  is  no  legal  injury,  and  no  tort 
which  will  sustain  an  action  for  damages.  Again,  a  party  in  doing 
an  act  in  necessary  self-defc^nse  may  injure  another  without  being 
liable  to  an  action,  as  where  a  lighted  firework  is  thrown  into  a 
company  and  again  thrown  out  in  self-defense,  when  it  falls 
against  another,  or  explodes  in  his  face  and  blinds  him.  Scott  v. 
Shepherd,  3  Wils.  403 ;  2  W.  Bla.  892.  So  if  a  person's  lands  are 
exposed  to  the  inroads  of  the  sea,  he  may  erect  proper  sea-walls 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  39 

for  the  protection  of  liis  lands,  without  liability  for  any  injury 
which  his  neighbor  may  sustain  in  consequence.  Rex  v.  Pagham, 
Com.,  etc.,  8  B.  &  C.  360.  One  who  owns  a  house  commanding  a 
fine  sea  view,  may  sell  the  house,  and  afterward  build  on  his  own 
land  in  such  a  manner  as  to  shut  out  the  sea  view  of  such  pur- 
chaser, and  yet  not  be  liable  to  an  action.  There  may  be  other 
wrongs  which  do  not  cause  such  legal  damages  as  to  sustain  an 
action,  as  where  there  is  a  slander  by  word  of  mouth,  but  the 
words  do  not  convey  an  imputation  of  an  indictable  offense,  if 
the  injured  party  has  not,  in  consequence,  sustained  some  pecu- 
niary loss,  or  been  injured  in  his  trade,  occupation  or  profession. 
At  common  law  the  most  unjust  and  public  charge  or  imputation 
of  a  want  of  chastity  on  the  part  of  a  female  is  not  actionable 
without  proof  of  actual  damages  {Pettlhone  v.  Slmj^son,  66  Barb. 
492 ;  Wilso7i  v.  Goii,  17  N.  Y.  [3  Smith]  443),  though  the  rule  is 
now  otherwise  by  statute  in  this  State.  Laws  N.  Y.,  1871,  ch. 
219,  §  1 ;  9  Edm.  Stat.  67. 

There  are  other  cases  in  which  the  damage  is  too  remote  to  give 
rise  to  a  cause  of  action.  The  publication  of  a  libel  upon  an 
opera  singer,  who  was  deterred  from  singing  because  of  her  fears 
of  injury  which  might  be  done  by  some  one  influenced  by  the 
libel,  but  not  on  account  of  the  publication  of  the  libel  itself,  will 
not  be  sufiicient  to  maintain  an  action  by  the  manager  against 
the  author  of  the  libel.  Asliley  v.  Harrison,  1  Esp.  49.  So,  in  an 
action  for  slander,  when  the  defendant  has  uttered  slanderous 
words  in  respect  of  the  plaintiff,  not  imputing  to  him  any  indict- 
able offense,  and  creating  a  cause  of  action  only  in  case  the 
utterance  of  the  slander  has  caused  actual  legal  damage  to  the 
plaintiff,  and  no  such  damage  has  accrued  to  the  plaintiff  directly 
from  the  utterance  of  the  words,  and  they  would  have  failed  to 
produce  any  injurious  consequences  to  the  plaintiff,  if  they  had 
not  been  repeated  b}^  another  person,  the  injury  resulting  from 
the  intervention  of  that  other  person  cannot  be  visited  upon  the 
defendant.  Ward  v.  Weeks,  7  Bing.  211 ;  Parkins  v.  Scoit,  1  H. 
&  C.  153. 

Competition  in  trade  is  not  actionable.  In  such  a  case  there  is 
no  wrong,  for  the  act  done  is  the  mere  exercise  of  an  undoubted 
right  which  belongs  to  every  member  of  society.  So,  if  a  fisher- 
man fits  out  a  boat  with  lines  and  nets,  and  goes  to  fish  in  the 
high  seas,  and  another  fisherman  comes  and  fishes  beside  him, 
and  with  tempting  baits,  or  other  contrivances,  draws  away  the 
fish  from  the  lines   and  nets  of  the  first  comer,  with  a  view  of 


40  OF  EIGHTS,  KEMEDIES  AND  ACTIONS. 

catcliing  them  himself,  an  injury  may  be  done  ;  but  there  is  no 
tort  or  wrong,  for  the  one  had  as  much  right  to  fish,  and  to  use 
fair  and  reasonable  means  to  catch  fish,  as  the  other  ;  but  if  the 
rival  fisherman  laj^s  hold  of  the  nets  of  the  first  comer,  or  vio- 
lently disturbs  the  vrater  and  drives  aw^ay  the  fish,  and  prevents 
the  latter  by  force  or  violence  from  exercising  his  occupation  or 
calling,  there  is  then  a  wrong  done  to  him,  and  he  is  entitled  to 
compensation  in  damages.     Young  v.  Hlcliens,  6  Q.  B.  606. 

Where  the  negligence  of  the  plaintiff"  contributed  to  bring 
about  the  injury  complained  of,  he  will,  as  a  general  rule,  be 
remediless,  and  upon  this  point  the  cases  are  very  numerous. 
But  in  this  connection,  it  should  be  noticed  that  contributory 
negligence  on  the  part  of  the  plaintiff"  may  not  prevent  his  action, 
unless  his  acts  were  such  that  but  for  them  the  injury  could  not 
have  happened  ;  or,  if  it  appeared  that  the  defendant  might  have 
avoided  the  consequences  of  the  plaintiff' s  neglect  or  careless- 
ness, by  the  exercise  of  due  care  on  his  own  part.  See  the  cases 
cited  in  2  Wait's  N.  Y.  Dig.  1087  to  1091. 

An  action  will  lie  for  a  continuing  tortious  act,  which  injuri- 
ously aff'ects  the  property  of  another  although  no  appreciable 
damage  results  from  it.  Delaware  &  Hudson  Canal  Co.  v.  Tor- 
rey^  33  Penn.  St.  (9  Gas.)  143;  see,  also,  Thomas  v.  BracJcney,!! 
Barb.  654;  Carliart  v.  Auburn  Gas-UgM  Co.,  22  id.  297;  Honsee 
V.  Hammond,  39  id.  89;  O Riley  v.  McChesney,  3  Lans.  278. 
There  is  a  class  of  cases,  in  which  it  is  material  to  the  preserva- 
tion of  a  right,  that  its  invasion,  although  productive  of  no 
positive  or  appreciable  damages,  should  not  be  tolerated  or  suf- 
fered with  impunity.  Thus,  trespass  for  the  breach  of  a  close 
is  maintainable  for  an  entry  on  the  land  of  another,  though  no 
real  damage  was  occasioned  thereby,  one  main  reason  being  that 
repeated  acts  of  going  over  the  land  might  eventually  be  relied 
upon  as  evidence  of  title  to  do  so,  and  thereby  the  rigid  of  the 
plaintiff"  to  the  absolute  enjoyment  of  the  land  might  be  injuri- 
ously affected.  The  proposition  may  indeed  be  generally  stated 
that  whenever  one  man  does  an  act  which,  if  repeated,  would 
operate  in  derogation  to  the  rights  of  another,  he  is  liable  to  an 
action,  without  particular  damage,  at  the  suit  of  the  person 
whose  right  maybe  affected.  Harropv.  Hirst,  L. E,.,  4  Exch.  47? 
per  Kelly,  C.  B. 

§  7.  Is  there  an  existing  right  of  action.  A  full  and  careful 
examination  of  a  case  may  show  clearly  that  there  was  once  a 
good  cause  of  action ;  but,  since  there  are  many  ways  in  which 


OF  EIGHTS,  REMEDIES  AND  ACTIONS.  41 

Buch  right  of  action  may  be  suspended,  impaired,  or  destroyed, 
it  is  always  proper  to  consider  how  far  the  case  in  hand  has 
been  thus  affected,  and  whether  there  is  a  present  perfect  right 
of  action. 

When  all  the  facts  alleged  in  the  complaint  are  conceded  to  be 
true,  but  they  are  not  sufficient  to  constitute  a  cause  of  action, 
the  occurrence  of  a  material  fact  after  the  service  of  the  summons 
cannot  be  incorporated  in  the  complaint,  and  will  not  be  of  any 
avail  in  maintaining  the  action,  because  the  right  of  action  must 
be  complete  before  the  action  is  brought.  McCullough  v.  Colby, 
4  Bosw.  603;  5  id.  477;  Waitson  v.  Tliibou,  17  Abb.  184; 
Buchanan  v.  Comstock,  57  Barb.  582 ;  Hare  v.  Van  Deusen,  32 
id.  92;  OotJiout  v.  Ballard,  41  id,  33  ;  Smith  y.Aylesworth,  40 
id.  104 ;  Bostwick  v.  Menclc,  4  Daly,  68 ;  Church  v.  Frosty  3 
Thomp.  &  Cook,  318  ;  MuUer  v.  Earle,  5  Jones  &  Sp.  388 ;  Cas- 
trique  v.  Bernabo,  6  Q.  B.  498 ;  King  v.  Accumulative  Assur- 
ance Co.,  3  C.  B.  (N.  S.)  151. 

As  there  are  many  important  matters  which  require  due  con- 
sideration before  bringing  an  action,  it  may  be  convenient  to 
refer  to  some  of  them. 

First  Where  there  has  once  been  a  good  cause  of  action,  it  is 
well  to  inquire  whether  it  lias  been  relinquished  or  forfeited  by 
any  act  or  omission  of  the  party  entitled  to  it,  as  by  laches,  lapse 
of  time  or  otherwise. 

.Secondly.  If  the  cause  of  action  arises  on  contract,  has  the 
plaintiff  performed  all  such  terms  or  conditions  of  it  as  the  law 
requires  of  him  before  the  other  party  can  be  put  in  default  ? 

Thirdly.  Are  there  any  acts  which  ought  to  be  done  by  the 
complaining  party  before  his  right  of  action  is  complete ;  such 
as  making  a  request  or  demand  upon  the  opposite  party,  giving 
notice  of  some  matter  or  thing  of  which  he  is  entitled  to  notice, 
or  offering  to  do  some  act  or  perform  some  condition  ? 

Fourthly.  Has  the  performance  of  the  contract  become  illegal 
by  act  or  operation  of  law ;  or  has  it  become  impossible  by  any 
acts  or  events  which  will  legally  excuse  the  performance  by  the 
defendant  ? 

Fifthly.  Has  the  defendant  done  any  thing  which  will  relieve 
him  from  the  liability  to  an  action,  such  as  making  a  tender 
before  suit  brought,  or  offering  judgment,  paying  the  demand, 
or  offering  to  liquidate  damages,  so  that  he  will  be  relieved  from 
the  costs  of  the  action  even  though  the  plaintiff  has  a  verdict? 

Sixthly.  Has  the  right  of  action,  if  once  perfect,  been  in  any 

Vol.  I.— 6 


42  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

manner  destroyed  or  barred,  as  by  a  release,  an  accord  and  satis- 
faction, an  arbitrament  and  award,  or  been  discharged  by  opera- 
tion of  law,  or  the  like  ? 

SemntJily.  Has  the  right  of  action  been  suspended,  as  by  tak- 
ing a  negotiable  security  which  is  not  due  ;  by  a  valid  extension 
of  the  time  of  performance  which  has  not  expired  ;  or  by  any 
valid  agreement  which  prevents  an  immediate  action  % 

Eiglithly.  Has  the  plaintiff  recovered  a  judgment  in  a  case  in 
which  he  seeks  a  remedy  founded  upon  such  recovery,  or  has  he 
been  defeated  in  an  action  so  as  to  entitle  him  to  recover  the  con- 
sequent loss  from  the  defendant ;  or  has  a  right  of  action  been 
established  at  law  in  those  cases,  in  which  such  a  recovery  is 
necessary  before  an  equitable  remedy  is  given,  as  by  injunction, 
etc.  ? 

Ninthly.  Where  the  cause  of  action  arose  upon  contract,  how 
far  will  an  action  be  affected  by  a  discharge  or  other  proceed- 
ing uitder  a  bankrupt  or  insolvent  law  ? 

TentJily.  Is  either  party  under  any  legal  disability,  such  as 
infancy,  coverture,  lunacy,  alienage  or  the  like ;  and  if  so,  what 
steps  are  necessary  to  be  taken  so  that  the  remedy  shall  be 
legally  pursued  ? 

Bleventhly.  Is  the  claim  or  demand  barred  by  the  statute  of 
limitations ;  and  if  it  has  been,  is  the  demand  renewed  by  a 
written  promise,  by  a  valid  part  payment  or  the  like  ? 

From  these  general  suggestions  it  will  be  seen  that  the  plain- 
tiff must  examine  the  law  carefully  as  to  his  original  right  of 
action,  and,  in  addition,  must,  as  far  as  possible,  anticipate  every 
ground  of  defense  which  is  likely  to  be  interposed. 

§  8.  Cumulative  or  exclusive  remedies  by  action.  A  statute 
which  provides  that  a  penalty  imposed  by  it  may  be  recovered 
by  a  summary  proceeding  upon  complaint  before  two  or  more 
justices,  does  not  bar  the  party  from  his  remedy  by  action. 
Collinson  v.  Newcastle  &  Darlington  Railway  Co.^  1  Car.  &  Kir. 
546  ;  Licl^field  v.  Simpson,  8  Q.  B.  65.  See  Lane  v.  Salter, 
51  N.  Y.  (6  Sick.)  1.  But  where  a  pecuniary  obligation  is 
created  by  a  statute,  and  a  remedy  expressly  given  for  enforc- 
ing it,  that  remedy  must  be  adopted.  St.  Pancras  {Vestry) 
v.  Battenhury,  2  C.  B.  (N.  S.)  477 ;  Dudley  v.  Mayhew,  3  N.  Y. 
(3  Comst.)  9  ;  Pirst  National  Bank  of  Wliiteliall  v.  Lamb,  57 
Barb.  434.  Where  a  statute  autliorizes  a  corporation  to  forfeit 
the  shares  of  stock  of  a  subscriber  for  the  non-payment  of  install- 
ments due  upon  a  stock  subscription,  an  exercise  of  the  right  of 


OF  EIGHTS,  REMEDIES  AND  ACTIONS.  43 

forfeiture  on  the  part  of  the  corporation  will  bar  any  subsequent 
action  for  such  installments.  Small  v.  HerTtimer  Manufacturing 
Co.,  2  N.Y.  (2  Com  St.)  330  ;  Mills  v.  Stewart,  41 N.  Y.  (2  Hand)  384. 

§  9.  Illegality  of  ground  of  action.  No  principle  of  law  is 
better  settled  than  that  which  declares  that  an  action  cannot  be 
maintained  upon  any  ground  or  cause  which  the  law  declares  to 
be  illegal.  Davidson  v.  Lanier,  4  Wall.  447 ;  Rolfe  v.  Delmar, 
7  Rob.  80  ;  Stewartson  v.  Lothrop,  12  Gray,  52  ;  Howard  v.  Har- 
ris ,  8  Allen,  297 ;  Pearce  v.  BrooJcs,  L.  R.,  1  Exch.  213 ;  Smith 
V.  White,  L.  R.,  1  Eq.  Cas.  626.     See  title  "Illegality." 

§  10.  Of  leare  to  bring  or  defend  actions.  As  a  general  rule, 
actions  may  be  commenced  or  defended  without  any  leave  of  the 
court  for  that  purpose.  There  are,  however,  some  classes  of 
action  in  which  the  court  ought  to  be  applied  to  for  leave  to 
bring  or  defend  the  action.  The  necessity  for  such  an  applica- 
tion always  arises  from  some  special  character  of  the  parties, 
either  as  plaintiff  or  defendant,  and,  therefore,  it  is  always  proper 
before  commencing  an  action,  or  interposing  a  defense,  to  ascer- 
tain whether  or  not  it  is  one  of  those  cases  which  requires  an 
application  for  leave  to  sue  or  to  defend.  The  necessity  for  such 
an  application  will  usually  depend  upon  the  fact  whether  or  not 
any  of  the  parties  to  the  action  are  under  the  control  or  the  pro- 
tection of  the  court.  If  they  are  not,  then  leave  to  sue  or  defend 
is  unnecessary  ;  if  they  are,  then  it  is  necessary.  An  omission 
to  obtain  leave  to  sue  where  such  leave  is  necessary,  is  a  mere 
irregularity  in  practice,  and  it  is  not  in  any  case  an  element  of 
the  cause  of  action.  Ghautauque  Bank  v.  Risley,  19  N.  Y.  (5 
Smith)  369  (376);  LaneY.  Salter,  4  Rob.  239.  See  1  Wait's  Prac. 
191-215  ;  see,  also,  post,  "  Leave  to  Sue,"  etc. 

§  11.  Of  the  parties  to  an  action.  It  is  of  the  utmost  import- 
ance that  the  proper  persons  should  be  made  parties  plaintiff  or 
defendant  as  the  case  may  require.  And  under  the  common-law 
system  of  practice,  an  omission  in  this  particular  was  frequently 
followed  by  the  most  serious  consequences.  But,  under  the 
liberal  system  of  the  Code,  the  courts  have  power  to  correct  such 
errors,  and  to  relieve  parties  from  the  consequences  of  an  error 
in  this  respect,  when  they  have  acted  in  good  faith,  and  where 
the  furtherance  of  justice  will  be  promoted  by  an  amendment. 
See  1  Wait's  Pract.  88-180,  as  to  the  proper  parties  to  an  action. 

In  the  present  work,  there  will,  in  many  cases,  be  full  informa- 
tion given  as  to  who  are  proper  parties  plaintiff  or  defendant. 
In  most  of  the  titles  will  be  discussed  the  right  of  action,  as  well 


44  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

as  the  questions  who  may  sue  or  who  may  be  sued.  The  parties 
who  may  defend,  and  what  to  interpose  as  a  defense,  will  be 
found  in  that  part  of  this  work  entitled  "Defenses." 

§  12.  Of  the  pleadings  in  an  action.  Pleading  has  been  defined 
to  be  "'the  statement,  in  a  logical  and  legal  form,  of  the  facts 
which  constitute  the  plaintiff's  cause  of  action,  or  the  defend- 
ant's ground  of  defense;  it  is  the  formal  mode  of  alleging 
on  the  record,  that  which  would  be  the  support  or  defense  of 
the  party  in  evidence."  In  this  work  it  is  not  intended  to  give 
the  technical  rules  of  pleading,  nor  the  forms  used  in  practice. 
These  must  be  sought  in  works  especially  devoted  to  those  sub- 
jects.    See,  also,  2  Wait's  Pract.  285-509. 

It  will  be  remembered,  however,  that  a  full  discussion  of  the 
right  of  action,  and  of  the  grounds  of  defense,  will,  in  most 
cases,  show  what  facts  ought  to  be  alleged  either  as  a  cause  of 
action  or  as  a  matter  of  defense. 

§  13.  Of  the  evidence  in  an  action.  This  subject  will  be  merely 
alluded  to  in  this  work,  and  full  information  must  be  obtained 
from  works  devoted  to  that  subject,  or  from  the  reports  and 
statutes.  But  notwithstanding  the  omission  of  a  full  discussion 
of  the  rules  of  evidence,  there  will  be  full  information  given  as 
to  the  facts  which  must  be  established  to  support  an  action  or  to 
maintain  a  defense. 


TITLE  VII. 

OF  THE  JURISDICTION  OF  ACTIONS. 

ARTICLE  I. 

IN  GENERAL. 

Section  1.  Definition  and  incidents.  Jurisdiction  is  that  power 
which  the  law  confers  upon  courts,  judges  or  other  j  udicial  officers 
to  take  cognizance  of  actions  or  proceedings,  and  to  decide  them 
according  to  law,  and  to  carry  their  decision,  decree  or  judgment 
into  execution.  The  tract  of  land  over  which  such  jurisdiction  is 
exercised  is  called  the  territorial  jurisdiction.  Jurisdiction  is 
original,  when  it  is  conferred  on  the  court  or  officers  in  the  first 
instance.  It  is  appellate,  when  an  appeal  may  be  taken  from  the 
decision  or  judgment  of  another  court.  It  is  concurrent,  when  it 
may  be  entertained  by  several  courts ;  although  it  is  a  rule,  in 


.  OP  RIGHTS,  REMEDIES  AND  ACTIONS.  45 

these  cases  of  concurrent  jurisdiction,  that  the  court  which  is 
first  seized  of  the  cause  shall  try  it  to  the  exclusion  of  the  other. 
It  is  exclusive,  when  only  one  court  has  the  right  to  try  the  suit, 
action,  or  matter  in  dispute.  Assistant  jurisdiction  is  that  which 
is  afforded  by  a  court  of  chancery  in  aid  of  a  court  of  law,  as,  for 
example,  by  a  bill  of  discovery. 

A  court  which  takes  cognizance  of  an  action,  and  proceeds  in 
it,  decides  in  effect  that  it  has  jurisdiction,  although  such  decision 
may  not  be  announced  in  express  terms.  Clary  v.  Hoagland,  6 
Cal.  685.  And  where  a  court  has  the  parties  before  it,  it  must 
necessarily  obtain  jurisdiction  so  far  as  to  decide  whether  it  can 
entertain  the  suit  or  proceeding,  that  is,  whether  it  has  jurisdic- 
tion of  the  action.  King  v.  Poole,  36  Barb.  242.  See  Cumber- 
land Coal  &  Iron  Co.  v.  Hoffman  Steam  Coal  Co.,  39  Barb.  16  ; 
15  Abb.  78  ;  Humiston  v.  Ballard,  40  How.  40  ;  S.C.,  63  Barb.  9. 

Where  jurisdiction  is  conferred  in  general  terms,  or  for  general 
or  special  purposes,  the  grant  of  such  jurisdiction  will  carry  with 
it  all  such  legal  incidents  as  are  necessary  and  proper  to  secure 
the  exercise  of  the  authority.  Stiefv.  Hart,  1 N.  Y.  (1  Comst.)  20  ; 
RolUns  V.  Oorliam,  25  N.  Y.  (11  Smith)  688,  594 ;  Yoorliees  v. 
Martin,  12  Barb.  508. 

Where  a  court  has  jurisdiction  it  has  a  right  to  decide  every 
question  which  occurs  in  the  cause,  and  whether  its  decision  be 
correct  or  otherwise,  its  judgment,  until  reversed,  is  regarded  as 
binding  in  every  other  court.  But  if  it  acts  without  authority, 
its  judgments  and  orders  are  regarded  as  nullities  ;  they  are  not 
voidable  but  simply  void.  People  v.  Sturtevant,  9  N.  Y.  (5  Seld.) 
263,  266 ;   Wilcox  v.  Jackson,  13  Peters,  511. 

"Usually  where  a  court  has  no  jurisdiction  of  a  case,  the  correct 
practice  is  to  dismiss  the  suit,  but  a  different  rule  necessarily 
prevails  in  an  appellate  court  in  cases  where  the  subordinate 
court  was  without  jurisdiction  and  has  given  judgment  or  decree 
for  the  plaintiff,  or  improperly  decreed  afiirmative  relief  to  a 
claimant.  In  such  a  case  the  judgment  or  decree  in  the  court 
below  must  be  reversed,  else  the  party  which  prevailed  there 
would  have  the  benefit  of  such  judgment  or  decree,  though  ren- 
dered by  a  court  which  had  no  authority  to  hear  and  determine 
the  matter  in  controversy."  United  States  v.  Huckabee,  16 
Wall.  (U.  S.)  414,  435,  436,  per  Clifford,  J. 


46  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

ARTICLE  11. 

COMMON'-LAW   JURISDICTION^. 

Section  1.  Nature  and  origin.  The  origin  of  courts  Las  been 
elsewhere  sufficiently  explained.  And,  in  relation  to  the 
authority  exercised  by  courts  generally,  but  few  remarks  are 
required.  In  the  creation  of  courts  and  in  the  delegation  of 
judicial  authority  to  them,  it  is  impossible  to  enumerate  all 
the  instances  in  which  such  authority  may  be  exercised. 
And  when  general  rules  of  law  have  been  established  for  the 
determination  of  the  rights  of  person  and  of  property,  and 
general  rules  of  practice  have  been  adopted,  it  is  left  to  the 
court  by  the  aid  of  these  rules  of  law  and  of  practice  to  determine 
what  cases  are,  and  what  not,  within  the  jurisdiction  of  the 
court  to  which  such  case  is  submitted.  And,  in  a  vast  number 
of  the  causes  which  have  been  decided  by  the  courts,  no  other 
authority  for  their  trial  is  to  be  found,  except  that  conferred  by 
the  principles  of  the  common  law,  or  of  those  of  courts  of  equity. 
In  all  such  cases,  where  courts  hear  and  determine  those  matters 
which  are  within  the  reason  of  the  rule  which  organized  them 
and  gave  them  authority,  it  is  an  invaluable  part  of  their  powers 
that  they  may  act  without  being  required  to  point  out  a  specific, 
express  grant  of  power  in  the  particular  case ;  for  if  this  could 
be  exacted  of  them,  the  result  would  be  to  deprive  them  of  a 
large  share  of  the  authority  which  they  have  exercised  from  time 
out  of  mind,  and,  by  general  consent,  with  the  greatest  advan- 
tage to  society  at  large.  If  any  one  desires  to  know  how  exten- 
sively this  practice  has  prevailed,  let  him  briefly  trace  the  source 
of  those  powers  which  are  daily  exercised  by  our  supreme  court 
in  actions  at  law,  or  in  suits  in  equity. 

ARTICLE  III. 

CONSTITUTIONAL    AND   STATUTORY    JURISDICTION. 

Section  1.  In  generaL  That  our  higher  courts  were  always  simi- 
lar to  those  of  the  English  superior  courts,  and  in  the  main 
founded  upon  them,  is  well  known.  And,  since  the  estab- 
lishment of  our  State  government,  the  rule  has  been  the  same, 
since  much  of  the  English  common  law  was  adopted  as  a 
part  of  our  system  of  laws.  The  jurisdictions  of  the  supreme 
court,  and  of  the  court  of  chancery,  have  never  been  distinctly 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  47 

pointed  out,  either  in  the  constitutions  or  the  statutes  of 
this  State.  The  lirst  constitution  treats  these  courts  as  exist- 
ing, and  mentions  the  chancellor  and  the  judges  of  the 
supreme  court,  but  does  not  declare  or  define  the  jurisdiction  of 
these  courts.  Const,  of  1777,  article  16.  By  the  constitution  of 
1821,  article  7,  section  13,  the  English  common  law  was  adopted. 
By  article  7,  sections  3,  4,  5,  6  and  7,  provision  is  made  in  rela- 
tion to  the  judges  and  chancellor,  but  their  jurisdiction  is  not 
there  defined.  The  constitution  of  1846,  article  7,  section  3,  pro- 
vides for  a  supreme  court,  having  general  jurisdiction  in  law  and 
equity.  The  judiciary  act  of  1847,  chapter  280,  section  16,  de- 
clares that  the  supreme  court  shall  possess  the  same  powers  and 
exercise  the  same  jurisdiction  as  had  formerly  been  possessed 
by  the  supreme  court  and  the  court  of  chancery. 

By  the  Code  of  Procedure,  section  10,  the  same  jurisdiction  is 
continued.  The  present  constitution,  article  6,  section  6,  con- 
tinues the  existing  jursidiction,  and  chapter  408  of  Laws  of  1870 
provides  for  carrying  the  provisions  of  this  constitution  into  effect. 

From  this  brief  review,  it  is  readily  seen  that  the  civil  j  uris- 
diction  of  the  supreme  court  extends  to  all  actions  or  suits  which 
are  within  the  jurisdiction  of  the  English  courts  of  queen' s  bench, 
common  pleas,  exchequer,  or  the  court  of  chancery.  There  are 
statutes  which  expressly  confer  or  define  the  jurisdiction  of  the 
supreme  court  in  specified  cases.  But,  as  a  whole  system,  there 
are  no  constitutional  or  statutory  provisions  which  clearly  and 
explicitly  declare  or  define  the  precise  limits  of  the  jurisdiction 
of  this  court  in  all  cases,  except  in  so  far  as  a  general  reference 
or  the  character  adopted  may  be  said  to  be  certain,  since  it  refers 
to  a  system  which  is  substantially  well  defined.  The  supreme 
court,  as  now  organized,  may  be  considered  as  possessing  juris- 
diction over  all  cases  of  a  legal  or  of  an  equitable  nature,  and  as 
competent  to  secure  every  right  and  to  give  every  remedy  or  relief 
which  the  law  guarantees  to  any  person.  There  are  a  few  excep- 
tions to  this  general  rule,  but  they  need  not  be  here  specified. 

ARTICLE  IV. 

JURISDICTION'   OF  STATE  COUETS. 

Section  1.  In  general.  Under  a  government  like  that  of  the 
United  States,  where  there  are  several  large  States,  and  each 
possessing  an  extensive  as  well  as  exclusive  jurisdiction 
within  its  limits,  it  may  be  laid  down  as  a  general  rule  that 


48  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

the  jurisdiction  of  each  State  does  not  extend  beyond  its  ter- 
ritorial limits,  and  that  within  such  limits  its  jurisdiction  is 
exclusive.  In  relation  to  the  United  States  courts  there  are 
exceptions  to  this  general  rule.  So,  too,  the  judgments  of  each 
State  are  entitled  to  respect  and  the  aid  of  other  States  in  carry- 
ing them  into  effect  in  such  States  when  necessary.  In  most 
cases,  a  party  who  seeks  a  remedy  against  a  resident  of  a  par- 
ticular State,  or  against  his  property  situated  within  it,  must 
apply  to  the  courts  of  that  State  for  the  relief  sought. 

ARTICLE  V. 

SUPERIOK  AND   INFERIOE  COURTS. 

Section  1.  In  general.  Those  courts  which  have  general  juris- 
diction in  law  or  equity  cases  are  usually  termed  superior 
courts,  while  those  which  have  but  a  limited  jurisdiction 
as  to  subject-matter,  locality  or  persons,  are  called  inferior 
courts.  The  proceedings  of  an  inferior  court  may  be  as  reg- 
ular and  its  judgments  as  conclusive  as  those  of  a  superior  court. 
But  the  mode  of  establishing  that  fact  is  not  always  the  same. 
A  court  of  general  or  superior  jurisdiction  is  presumed  to  have 
acted  within  its  jurisdiction,  and  this  presumption  continues 
until  the  contrary  is  shown.  The  record  of  the  proceedings  of  a 
superior  court  need  not  show  affirmatively  that  it  had  jurisdic- 
tion, so  far  as  the  authority  to  act  is  concerned,  when  the  ques- 
tion arises  collaterally,  but  it  is  otherwise  when  the  question 
arises  by  way  of  review  for  the  correction  of  errors,  and  the 
question  has  been  properly  raised  in  due  time.  Limited  or  infe- 
rior courts  have  no  jurisdiction  except  that  specially  conferred, 
or  such  incidental  powers  as  may  be  included  in  the  general 
delegation  of  the  authority.  And  in  such  cases  the  records  of 
their  proceedings  ought  to  show  affirmatively  on  their  face  that 
the  court  had  jurisdiction,  except  in  those  cases  which  permit 
extrinsic  evidence  for  the  purpose  of  establishing  that  fact.  2 
Wait's  Law  and  Pract.  21. 

ARTICLE  VL 

EXCLUSIVE   OR  CONCURRENT  JURISDICTION. 

Section  1.  In  general.  The  jurisdiction  of  any  court  is  exclu- 
sive, when  no  other  court  can  exercise  the  same  powers  in  rela- 
tion to  the  action.     In  some  cases  the  United  States  courts 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  49 

have  exclusive  jurisdiction,  and  the  State  courts  have  no 
a,uthority  to  act  in  the  matter.  So,  too,  in  reference  to  the 
several  courts  in  a  State,  there  may  be  an  exclusive  juris- 
diction conferred  upon  one  court  to  the  exclusion  of  the 
other  courts  of  the  same  State.  The  distinction  between  the 
powers  of  the  superior  and  the  inferior  courts  illustrates  this  point. 
Again,  in  those  States  in  which  courts  of  law  and  courts  of  equity 
are  separate  organizations,  there  are  numerous  instances  in  which 
each  court  has  exclusive  jurisdiction.  This  subject,  however,  is 
less  important  here,  since  the  powers  of  the  two  courts  are  now 
exercised  by  the  supreme  court. 

The  jurisdiction  of  courts  is  concurrent,  when  each  of  several 
different  courts  has  the  same  right  to  act  in  relation  to  its  sub- 
ject-matter, or  as  to  the  persons  of  the  parties.  There  are  many 
cases  in  which  there  i%  a  concurrent  jurisdiction  in  most  respects, 
while  there  are  few  cases  in  which  the  powers  of  the  court  are 
identical.  Within  certain  limits  as  to  amount,  and  as  to  the 
locality  of  the  parties,  when  an  action  for  the  recovery  of  money 
has  been  brought  in  a  justice's  court,  it  maybe  said  to  have 
exercised  a  jurisdiction  concurrent  with  that  of  the  supreme 
court  as  to  the  recovery  of  that  amount.  But,  the  most  that  can 
be  properly  said  is,  that  the  inferior  court  has  a  limited  concur- 
rent jurisdiction.  There  are  also  courts  of  record,  such  as  the 
county  courts,  and  other  courts  of  record  of  cities,  which  exer- 
cise a  jurisdiction  concurrent  in  some  respects  with  that  possessed 
by  the  supreme  court.  But,  in  all  such  cases,  while  the  inferior 
courts  possess  a  limited  concurrent  jurisdiction  in  some  respects, 
it  cannot  be  said  of  any  of  them  that  their  jurisdiction  is  in  any 
other  respect  concurrent  with  that  of  the  supreme  court.  There 
may  be  a  concurrent  jurisdiction  as  to  some  remedies,  while  in 
all  other  respects  the  jurisdiction  is  in  no  sense  concurrent. 

ARTICLE  VII. 

JUEISDICTIOlSr   OF  SUBJECT-MATTEB. 

Section  1.  In  general.  In  actions  in  the  supreme  court  there  can 
seldom  be  any  question  as  to  the  jurisdiction  over  the  subject- 
matter  of  the  action,  since  this  court  has  general  jurisdiction 
at  law  and  in  equity.  But  even  this  court  is  sometimes  with- 
out authority  to  act,  as  in  the  case  of  an  action  to  restrain 
the  infringement  of  a  patent  right.  Dudley  v.  Mayhew,  3 
N.  Y.  (3  Comst.)  9.  If  the  law  does  not  confer  jurisdiction 
.Vol.  L— 7 


50  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

over  tlie  subject-matter  of  the  action,  no  consent  given  by  the 
parties  will  be  of  any  avail,  even  though  there  should  be  an 
express  agreement  not  to  raise  the  question.  lb.  And  the  objec- 
tion may  be  interposed  at  any  time,  since  in  that  case  there  can 
be  no  waiver  of  it;  but  the  judgment  will  be  held  entirely  void 
at  all  times  and  in  all  places.  See  the  cases  cited  in  Wait' s 
Code,  24,  25,  26. 

Courts  cannot  be  deprived  of  their  jurisdiction  by  any  agree- 
ment of  the  parties,  as  by  an  agreement  that  matters  of  differ- 
ence arising  out  of  a  specified  contract  shall  be  submitted  to 
arbitration.  Hart  v.  Lauman,  29  Barb.  411 ;  Haggart  v.  Morgan^ 
5  N.  Y.  (1  Seld.)  422.     See  1  Wait's  Law  and  Prac.  1013. 

Nor  can  they  by  consent  confer  jurisdiction  over  the  subject- 
matter  of  actions,  where  none  is  given  by  law,  Dudley  v.  May- 
hew,  3  N.  Y.  (3  Comst.)  9;  Beach  v.  mxon\  9  N.  Y.  (5  Seld.)  36; 
2  Wait's  Law  and  Prac.  15  ;  Anards  v.  Rhodes^  8  Exch.  312  ; 
Lawrence  v.  TF/ZcocA:,  11  Ad.  &  E.  941 ;  Vansittart  v.  Taylor,  4 
E.  &  B.  910,  912. 

ARTICLE  VIII. 

JURISDICTION  OF    THE  PERSON". 

Section  1.  In  generaL  Before  any  court  can  acquire  jurisdiction 
over  the  person  of  the  defendant,  there  must  be  some  steps 
taken  to  bring  him  into  the  court.  2  Wait's  Law  and  Prac. 
11  to  15.  No  one  can  be  lawfully  condemned  before  he  has 
had  an  opportunity  to  be  heard.  There  is  a  material  differ- 
ence, however,  between  this  case  and  that  relating  to  the  sub- 
ject-matter of  the  action.  In  the  latter  case  we  have  seen  that 
consent  cannot  confer  jurisdiction.  But  a  defendant  may  waive 
an  irregularity  in  the  mode  of  bringing  him  into  court,  or  he 
may  appear  and  give  jurisdiction  over  his  person  by  consent.  2 
Wait's  Law  and  Prac.  17  to  20.  Such  waiver  may  be  express,or 
it  may  be  implied  from  his  acts,  by  taking  subsequent  steps  in 
the  action  without  objection  to  the  previous  irregular  or  void 
proceedings.  But  for  all  practical  purposes,  a  single  remark  is 
sufficient,  as  every  careful  practitioner  will  be  certain  to  proceed 
in  such  a  manner  that  no  valid  objection  can  be  made  in  relation 
to  the  regularity  of  the  steps  by  which  the  defendant  has  been 
proceeded  against  for  the  purpose  of  obtaining  jurisdiction  over 
his  person  or  property. 

It  may  be  well  to  mention  here  that  in  case  the  defendant  is 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  61 

absent  from  tlie  State,  or  is  a  non-resident,  there  may,  in  a 
proper  case,  be  proceedings  against  such  of  his  property  as  may 
be  found  in  this  State. 

ARTICLE  IX. 

DISQUALIFICATION   OF  JUDGES. 

Section  1.  In  general.  The  law  declares  in  some  cases,  that  a 
judge  cannot  sit  as  such  on  account  of  some  matter  personal 
to  himself.  Relationship  to  either  of  the  parties  is  an  instance 
of  this  kind.  2  R.  S.  275,  §  2.  So  of  an  interest  in  the  cause 
of  action,  or  where  he  is  a  party  to  the  action.  lb.  If  he 
decided  the  cause  in  the  court  below,  or  took  part  in  the 
decision,  he  cannot  sit  in  the  appellate  court,  in  review  of  such 
decision.  lb.,  §  3.  Const,  art.  6,  §  8.  See,  also.  Real  v. People,  42 
N.  Y.  (3  Hand)  270;  8  Abb.  (N.  S.)  314. 

Where  a  judge  is  disqualified  to  sit  in  a  cause,  by  reason  of 
consanguinity  to  one  of  the  parties,  he  cannot  sit,  even  by  con- 
sent of  both  parties,  and  if  he  does,  the  judgment  will  be  vacated. 
Oakley  v.  Aspinwall,  3  N.  Y.  (3  Comst.)  647.  See  2  Wait's  Law 
and  Prac.  21  to  28. 

ARTICLE  X. 

JUKISDICTION    IN"    SPECIAL  CASES. 

Section  1.  In  general.  There  are  numerous  cases  of  actions  and 
special  proceedings  in  which  the  jurisdiction  is  expressly  con- 
ferred by  statute. 

ARTICLE  XI. 

OF  RAISING   OR  WAIVING  THE  OBJECTION. 

Section  1.  In  general.  Where  the  court  has  no  jurisdiction  over 
the  subject-matter  of  the  action,  an  objection  may  be  taken 
at  any  time ;  but,  where  the  objection  relates  to  the  person 
of  the  defendant,  he  may  waive  any  irregularity  in  the  mode 
of  bringing  him  into  court ;  and,  when  once  waived,  the 
jurisdiction  of  the  court  over  his  person  will  be  complete. 
Such  waiver  may  be  express  or  implied,  and  if  the  defend- 
ant proceeds  in  the  action  by  pleading,  or  taking  other  steps 
therein,  his  conduct  will  amount  to  a  waiver  of  all  objec- 
tions of  that  kind ;  and,  if  a  party  would  avail  himself  of  such 
objections,  he  must  act  promptly  in  raising  them,  and  be  careful 
not  to  waive  them  by  any  subsequent  acts  on  his  part.  See  2 
Wait's  Law  and  Prac.  19,  20. 


62  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

TITLE  VIII. 

OF  KEMEDIES  WITHOUT  ACTION. 

ARTICLE  I. 

OF   PKEVENTIVE   MEASUEES. 

Section  1.  In  general.  Courts  of  justice  are  instituted  in  every 
civilized  society  for  the  purpose  of  securing  an  effectual  redress 
of  private  injuries,  by  protecting  the  weak  from  the  insults 
of  the  stronger,  and  by  expounding  and  enforcing  those 
laws  by  which  rights  are  defined  and  wrongs  prohibited. 
This  remedy  is  principally  to  be  sought  by  an  application  to 
these  courts  of  justice  by  means  of  a  civil  suit  or  action.  But, 
as  there  are  certain  injuries  of  such  a  nature  that  some  of  them 
furnish,  and  others  require,  a  more  speedy  remedy  than  can  be 
had  by  the  ordinary  forms  of  justice,  there  is  allowed,  in  any 
such  case,  an  extrajudicial  remedy  without  the  aid  of  the  courts. 
In  many  cases  the  most  speedy  justice  afforded  by  the  courts 
could  not  adequately  supply  the  absence  of  such  immediate  and 
necessary  remedies,  nor  could  the  natural  impulse  of  self-defense 
against  sudden  and  immediate  aggressions  be  restrained.  The 
law,  therefore,  permits  parties  to  adopt  certain  modes  of  resist- 
ance, and  merely  interferes  to  modify  and  regulate  the  means 
employed.  Laws  for  the  prevention  of  injuries  are  sometimes 
better  than  those  for  compensation  or  punishment,  as  they  pre- 
vent loss  to  the  individual,  and  the  necessity  of  prosecuting  the 
wrong-doer  at  the  risk  of  his  being  utterly  unable  to  make  com- 
pensation, or  even  to  reimburse  the  expenses  of  legal  proceed- 
ings against  him.  Preventive  remedies  may  be  variously  divided, 
and  for  the  purpose  of  convenient  discussion  they  will  be  pre- 
sented in  the  order  adopted  in  this  title. 

ARTICLE  11. 

DEFENSE  BY   RESISTANCE. 

Section  I.  In  general.  Self-defense  is  one  of  the  first  and  strong- 
est impulses  of  our  nature.  And  the  law  respects  the  passion 
of  the  human  mind  so  far  as  to  render  it  lawful  for  him  to 
do  himself  that  immediate  justice  to  which  he  is  prompted 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  63 

by  nature,  and  which  no  prudential  motives  are  strong  enough 
to  restrain.  The  future  process  of  law  may  be  by  no  means 
an  adequate  remedy  for  an  injury  accompanied  by  force; 
and  it  is  impossible  to  say  to  what  lengths  of  rapine  or  cruelty 
an  outrage  of  this  sort  might  be  carried,  unless  it  were  permitted 
a  man  immediately  to  oppose  one  violence  with  another.  3 
Broom  &  Had.  Com.  3;  id.,  vol.  2,  p.  2,  Wait's  ed.,  and  notes 
427,  428.  Self-defense,  therefore,  as  it  is  justly  called  the 
primary  law  of  nature,  so  is  not,  neither  can  it  be  in  fact,  taken 
away  by  the  laws  of  society.  lb. 

ARTICLE  III. 

DEFENSE   OF  THE   PERSON. 

Section  1.  In  general.  The  strongest  justifiable  act  of  defense 
is  the  killing  of  the  aggressor,  and  which  of  course  includes  bat- 
tery, wounding  and  mayhem,  or  a  minor  damage.  The  general 
rule  is,  that  a  homicide  may  be  committed  for  the  prevention 
of  any  forcible  and  atrocious  crime,  which  would,  if  com- 
pleted, amount  to  a  felony,  and  under  the  circumstances,  a 
mayhem,  wounding  or  battery  would  be  equally  justifiable. 

Self-defense  is  also  equally  justifiable  when  a  person  is  illegally 
attacked,  although  the  aggressor  may  not  intend  to  commit  a 
felony.  But  the  party  defending  ought  not  to  permit  his  resist- 
ance to  exceed  the  bounds  of  defense  and  prevention,  for  if  he 
does,  he  may  become  himself  an  aggressor.  See  the  last  section 
and  cases  referred  to. 

ARTICLE  IV. 

DEFENSE  OF  PERSONAL  PROPERTY. 

Section  1 .  In  generaL  A  man  may  repel  force  by  force  in  de- 
fense of  his  personal  property,  and  justify  homicide  against  one 
who  manifestly  intends  or  endeavors,  by  violence  or  surprise, 
to  commit  a  known  felony,  as  robbery ;  but  this  rule  does 
not  extend  to  the  case  of  a  pickpocket,  for  that  would  not 
be  a  case  of  forcible  felony.  1  Chit.  Gen.  Pr.  597.  When  one 
person  has  unlawfully  entered  upon  the  premises  of  another  and 
possessed  himself  of  the  goods  of  the  owner,  the  latter  or  his 
agent  may,  while  upon  his  own  premises,  prevent  the  wrong-doer 
from  taking  such  goods  away,  and  may  lawfully  use  so  much 
force  as  may  be  necessary  to  retain  his  property  and  prevent  its 


54  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

removal  out  of  his  custody  and  beyond  his  reach.  The  law  does 
not  oblige  the  owner  of  property  to  stand  idly  by  and  see  a 
thief  or  trespasser  take  his  property  from  his  premises,  or  limit 
him  to  mere  verbal  remonstrance.  He  may  act  promptly,  and 
whether  he  may  use  force  or  not  in  the  first  instance,  and 
what  degree  of  force  depends  upon  the  exigency  of  the  particu- 
lar case.  Gyre  v.  Culver,  47  Barb.  592.  The  mere  taking  of  the 
property  by  the  owner,  under  such  circumstances,  from  the  cus- 
tody of  the  wrong-doer,  without  other  force  or  violence,  does  not 
constitute  an  assault  and  battery.  And  if  the  taking,  or  the 
attempt  to  take,  is  resisted  by  the  trespasser,  and  he  persists  in 
his  attempt  to  retain  possession  and  to  carry  the  property  off, 
then  the  owner  may  lawfully  use  so  much  additional  force  as 
may  be  necessary  to  prevent  it.  lb.  But,  even  in  such  a  case, 
the  force  must  not  exceed  that  necessary  for  the  defense  of  the 
property.  And  where  the  plaintiff  took  hold  of  a  rake  in  the 
defendant's  hands  in  order  to  take  it  from  him,  upon  which  the 
defendant  immediately  knocked  the  plaintiff  down  with  his 
fist,  this  was  held  to  be  an  unlawful  act.  Scribner  v.  Beach,  4 
Denio,  448.' 

ARTICLE  Y. 

DEFENSE  OF  REAL  PROPERTY. 

Section  1.  In  general.  A  person  may  lawfully  defend  or  protect 
the  possession  of  real  property,  and  if  the  assailant  is  attempt- 
ing to  commit  a  forcible  felony,  such  as  burglary,  arson, 
or  the  riotous  demolition  of  a  house,  the  party  in  possession 
may  resist  even  to  the  extent  of  taking  the  life  of  the  felon- 
ious assailant.  So  where  a  forcible  attack  is  made  upon  a 
dwelling-house,  but  without  any  felonious  intent,  and  for  the 
purpose  of  committing  a  mere  trespass,  it  is,  as  a  general  rule, 
lawful  to  oppose  force  by  force  when  the  former  is  illegal.  In 
such  cases  a  party  may  justify  a  battery,  by  showing  that  he 
committed  it  in  defense  of  his  possession,  as  for  instance  to 
remove  a  trespasser  out  of  his  close  or  house,  or  to  prevent 
him  from  entering  it,  or  to  restrain  him  from  taking  or  destroy- 
ing his  goods ;  but  the  battery  must  here  be  limited  to  only 
that  degree  of  violence  and  the  use  of  such  weapons  only  as 
may  be  absolutely  essential  to  effect  the  object,  and  no  more. 
A  possession  in  fact,  of  land,  will  justify  the  possessor  in  using 
violence,  if  necessary,  in  order  to  defend  his  possession  ;  but  a 
mere  right  to  the  possession  will  not  justify  a  person  in  commit- 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  55 

ting  an  assault  and  battery  upon  anotlier,  for  the  purpose  of 
reducing  his  right  to  actual  possession.  Parsons  v.  Brown,  15 
Barb.  590.  See,  also.  Sage  v.  Harpending,  49  id.  166  ;  34  How. 
1 ;  Corey  v.  People,  45  Barb.  262. 

When  the  entry  upon  lands  is  made  with  no  more  force  than 
that  termed  implied  force,  or  force  in  law,  there  ought  to  be  a 
request  by  the  lawful  possessor  that  the  wrong-doer  depart  from 
the  premises  before  a  resort  to  actual  force  is  employed  for  his 
removal.  If  he  refuses  to  leave,  then  gentle  force  may  be  used ; 
and,  if  he  still  resists,  then  such  force  as  may  be  necessary  may 
be  employed.  When  the  entry  is  forcible,  it  is  lawful  to  use 
force  against  force  without  a  previous  request  to  depart.  The 
distinction  between  an  entry  with  actual  force,  and  an  entry  with 
only  implied  force,  with  regard  to  a  trespass  on  land,  has  been 
settled  law  from  an  early  period. 

A  mere  trespass  on  land,  or  that  of  the  property  therein,  is  not 
such  an  act  as  justifies  the  owner  in  making  use  of  a  dangerous 
or  a  deadly  weapon.  There  are  several  methods  of  protecting 
property,  as  by  dogs  and  by  instruments  dangerous  to  trespass- 
ers, and  information  relating  to  cases  of  that  kind  will  be  here- 
after given. 

ARTICLE  YI. 

DEFENSE    OF   OTHERS. 

Section  1.  In  general.  The  principle-  which  sanctions  the 
defense  of  one's  own  person  is  extended  to  certain  other  peculiar 
relations.  Thus  husband  and  wife,  parent  and  child,  master 
and  apprentice,  and  master  and  servant  are  legally  excused, 
and  sometimes  even  justified,  in  killing  an  assailant  who  is 
about  to  commit  a  forcible  felony  upon  the  other,  when  such 
homicide  has  been  committed  in  the  necessary  or  lawful 
defense  of  each  other ;  the  act  of  each  of  those  relations 
being  then  construed  the  same,  and  equally  permitted  as  the 
defense  of  the  party  himself.  1  Chit.  Gen.  Pr.  613.  This  principle 
extends  still  further,  for,  if  a  felonious  attack  is  made  upon  an 
individual,  then  any  other  person,  though  not  a  relative,  may 
lawfully  interfere  to  prevent  the  mischief  intended,  and,  if  in  so 
doing,  death  ensues,  he  will,  in  that  case,  be  justified.  lb.  But 
with  regard  to  mere  trespasses,  there  is  a  very  material  differ- 
ence between  the  interference  of  certain  relations  and  of  mere 
strangers.  The  former  may  justify  immediate  resistance  with 
force  when  necessarj^,  but  a  stranger  can  only   interfere  moder- 


56  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

ately,  and  with  gentle  hand  to  prevent  the  wrong.  lb.  A  mere 
stranger  cannot  justify  an  interference  with  force  in  the  first 
instance  to  prevent  a  battery  of  a  tliird  person  or  any  other  tres- 
pass or  civil  injury,  where  death  or  any  felony  is  not  likely 
immediately  to  occur,  but  must  proceed  more  moderately,  and 
should  previously  declare  or  signify  that  he  interferes  merely  to 
preserve  the  peace  and  not  as  a  partisan,  and  he  can  only  justify 
the  gently  laying  on  of  his  hands  to  prevent  a  breach  of  the 
peace  ;  though  afterward,  if  he  be  himself  attacked  by  either 
party,  he  may  then  defend  himself  with  the  same  degree  of  force 
as  if  he  had  been  originally  illegally  assailed.  lb.  615. 

ARTICLE  VII. 

APPREHE]!^DING    CRIMINALS   AKD   WRONG-DOERS. 

Section  1.  In  general.  One  of  the  most  immediate  and  effectual 
means  of  preventing  an  injury  or  securing  punishment  for  its  com- 
pletion is  the  apprehension  and  detention  of  the  wrong-doer  while 
in  the  act  of  committing  the  offense  ;  or  in  the  case  of  a  felony 
when  he  is  escaping  ;  and,  also,  of  seizing  his  engines  or  implements 
about  to  be  used  and  then  using  for  the  wrongful  purpose.  In 
such  cases  an  arrest  may  be  made  without  waiting  for  a  criminal 
warrant,  for,  if  it  were  necessary  to  wait  for  that  process,  many 
unknown  and  transient  offenders  would  escape.  In  most  cases 
of  mere  civil  injuries  without  force,  or  even  for  a  breach  of  the 
peace,  as  an  assault  and  battery,  no  private  individual  can,  at 
common  law,  arrest,  apprehend  or  imprison  the  wrong-doer,  but 
can  at  most  remove  him  from  his  house  without  any  imprison- 
ment. 

But  private  individuals  are  not  only  permitted,  but  enjoined, 
by  law,  to  arrest  an  offender  when  they  are  present  at  the  time 
when  a  felony  is  committed  or  a  dangerous  wound  given,  and 
when  they  witness  the  same,  on  pain  of  fine  or  imprisonment,  if 
the  wrong-doer  should  escape  through  their  negligence. 

In  cases  of  misdemeanor,  a  private  person  cannot,  at  common 
law,  apprehend  another  after  the  misdemeanor  or  breach  of  the 
peace  is  over,  without  a  warrant,  unless  he  had  a  view  of  the 
misdemeanor  or  breach.  As  the  cases  are  very  numerous  in 
which  arrests  may  be  made  without  warrants,  no  enumeration 
will  be  here  attempted. 

It  may,  however,  be  stated,  that  when  it  is  doubtful  whether  a 
party  has  committed  a  felony,  the  safer  rule  will  be  to  procure 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  57 

a  warrant  for  his  arrest,  since,  in  that  case,  the  party  arrested, 
although  innocent,  cannot  maintain  an  action  unless  the  charge 
was  maliciously  made  against  him  without  reasonable  cause. 
When  a  private  person  has  apprehended  a  supposed  offender, 
he  ought  immediately,  or  as  soon  as  practicable,  to  deliver  the 
prisoner  to  a  constable,  or  convey  him  before  a  magistrate,  or  to 
the  county  jail. 

ARTICLE  VIII. 

RESISTANCE   OF   PROCESS,    ESCAPES,    RESCUES,   ETC. 

Section  1.  In  general.  When  persons  having  lawful  authority  to 
arrest,  apprehend,  or  imprison,  or  otherwise  to  advance  or  execute 
the  public  justice  of  the  State,  either  civil  or  criminal,  and  using 
the  proper  means  for  that  purpose,  are  resisted  in  so  doing,  not 
only  is  such  resistance  of  itself  illegal  and  punishable  at  common 
law,  but  if  the  party  illegally  resisting,  or  any  other  assisting  him, 
be  killed  in  the  struggle,  such  homicide  is  justifiable;  while  on 
the  other  hand,  if  the  party  having  such  authority,  and  execut- 
ing it  properly,  happen  to  be  killed,  it  will,  at  common  law,  be 
murder  in  all  who  take  part  in  such  resistance.  1  Chit.  Gen. 
Pr.  633. 

But  it  will  be  found  that  the  common  law,  and  all  statutes 
upon  the  subject,  either  expressly  or  impliedly,  suppose  that 
the  arrest  or  imprisonment  has  been  lawful,  and  therefore  an 
indictment  or  prosecution  for  the  resistance,  or  rescue,  or  prison 
breaking,  must  show  the  nature  and  cause  of  the  imprisonment 
from  which  the  party  escaped  or  was  rescued,  in  order  that  it 
may  appear  that  the  rescue  or  escape  was  illegal.  lb.  634. 

AVhen  the  attempted  arrest  is  without  legal  authority,  it  is 
lawful  for  the  party  thus  threatened  with  arrest  to  resist  in  self- 
defense,  though  he  ought  not  to  use  any  dangerous  or  deadly 
weapon  for  that  purpose.  And  if  arrested  he  may  lawfully 
escape  or  be  rescued,  or  even  break  prison,  and  others  may  assist 
him  in  so  doing.  lb.  635.  But  when  the  process  or  arrest  has  a 
semblance  of  legality  and  regularity,  the  prudent  course  will  be 
not  to  resist  its  execution,  as  there  are  proper  and  efficient  modes 
of  obtaining  relief  from  an  illegal  imprisonment. 

Vol.  I. —8 


68  OF  EIGHTS,  EEMEDIES  AND  ACTIONS. 

ARTICLE  IX. 

RECAPTIOlSr   OF   PERSON"   OR    PROPERTY. 

Section  1.  In  general.  Recaption  or  reprisal  is  another  species 
of  remedy  by  the  mere  act  of  the  party  injured.  This  hap- 
pens, when  any  one  has  deprived  another  of  his  property 
in  goods  or  chattels  personal,  or  when  he  detains  one's  wife, 
child  or  servant;  in  which  case,  the  owner  of  the  goods,  the 
husband,  parent  or  master,  may  lawfully  claim  and  retake 
such  property  in  person,  wherever  found,  provided  it  is  not 
done  in  a  riotous  manner,  or  attended  with  a  breach  of  the 
peace.  The  reason  of  this  is  obvious,  since  the  owner  may 
not  have  any  other  opportunity  of  doing  himself  justice,  as  his 
goods  might  be  afterward  conveyed  away  or  destroyed,  and  his 
wife,  child  or  servant  concealed  or  carried  out  of  his  reach,  if  he 
had  no  speedier  remedy  than  the  ordinary  process  of  law. 

The  public  peace,  however,  must  be  considered  rather  than 
any  one  man' s  right  of  property,  and  since,  therefore,  if  private 
individuals  were  once  allowed  to  use  private  force  as  a  remedy 
for  private  injuries,  all  social  justice  must  cease.  The  strong 
would  give  law  to  the  weak,  and  every  man  would  revert  to  a 
state  of  nature.  For  these  reasons,  it  is  provided  that  this  natu- 
ral right  of  recaption  shall  never  be  exerted  when  such  exertion 
must  occasion  strife  and  bodily  contention,  or  endanger  the  peace 
of  society. 

§  2.  Recaption  of  the  person  of  a  relative.  When  a  wife,  child 
or  an  apprentice,  has  been  taken  away  wrongfully  by  the  party 
withholding  either,  the  person  entitled  to  the  custody  may  at 
once,  and  without  any  formal  request  or  demand,  peaceably 
enter  the  house  of  the  wrong-doers,  the  outer  door  being  open, 
and  carry  away  the  party  wrongfully  detained.  But  such  recap- 
tion cannot  be  legally  effected  in  a  riotous  manner,  nor  should 
it  be  attended  with  a  breach  of  the  peace  ;  but,  although  a  forci- 
ble entry  were  made,  and  the  party  might  be  liable  to  an  indict- 
ment f6r  such  breach  of  the  peace,  yet,  unless  some  actual 
injury  were  committed  to  the  person  or  property  of  the  original 
wrong-doer,  he  could  not  sustain  any  civil  action  in  respect  of 
the  forcible  manner  of  regaining  the  wife,  child  or  apprentice. 
If  the  recaption  be  resisted  by  force,  the  proper  mode  of  pro- 
cedure will  be  to  apply  for  a  writ  of  liabeas  corpus. 

§  3.  Recaption  of  personal  property.  The  same  general  prin 
ciples  govern  this  case  as  in  those  last  referred  to.     In  mjlny 


OF  RIGHTS,  REMEDIES  AiS^D  ACTIONS.  59 

cases  a  recaption  of  personal  property  may  be  the  best,  or  indeed 
the  only  remedy,  as  when  one  joint  tenant,  or  tenant  in  common, 
takes  a  chattel  and  assumes  the  exclusive  possession,  in  which 
case  no  action  at  law  would  lie,  and,  therefore,  the  only  remedy 
would  be  for  the  co-owner  to  retake  the  possession. 

If  a  party  has  been  wrongfully  dispossessed  of  his  personal 
property,  he  may  in  general  justify  the  retaking  of  it  from  the 
house  and  custody  of  the  wrong-doer,  even  without  a  previous 
request  to  re-deliver  it ;  for  the  violence  which  happens  through 
the  resistance  of  the  wrongful  taker  being  attributable  to  his  own 
tortious  act,  deprives  him  of  any  right  to  complain  ;  and  the 
owner  of  personal  property  may  retake  the  same,  with  a  moder- 
ate degree  of  force,  from  a  person  wrongfully  refusing  to  deliver 
the  same  up  to  him.  Burridgev.  Nicholetts^  6  H.  &N.  389.  See 
Blades  v.  Higgs,  11  H.  L.  Cas.  621 ;  Smith  v.  Wright,  6  H.  &  IST. 
821.  But  in  this  recaption,  care  must  be  observed  to  avoid  any 
personal  injury,  in  any  forcible  entry  or  breach  of  the  peace, and 
if  either  be  anticipated,  then  the  owner  of  the  goods  should  re- 
plevy them,  or  resort  to  an  action,  rather  than  subject  himself  to 
a  proceeding  for  the  personal  injury,  or  an  indictment  for  a 
breach  of  the  peace. 

If  the  personal  property  was  not  originally  illegally  seized, 
but  is  merely  wrongfully  detained,  then  the  owner  must  iirst 
request  a  re-delivery,  and  he  cannot  justify  more  than  gently 
laying  his  hands  on  the  wrong-doer  in  order  to  recover  it ;  nor 
can  the  owner,,  without  leave,  enter  the  door  of  a  house  of  a  third 
person,  not  privy  to  the  wrongful  detainer,  or  take  the  goods 
therefrom  ;  and  the  same  doctrine  extends  to  the  land  of  a  third 
person.  Patrick  v.  Colerick^  3  M.  &  W.  486 ;  Anthony  v.  Haneys, 
8  Bing.  186. 

Another  general  rule  is,  that  the  natural  right  of  recaption 
should  never  be  exerted  where  such  exertion  would  occasion 
strife  and  bodily  contention,  or  endanger  the  peace  of  society. 
The  right  of  retaking  goods  fraudulently  purchased,  but  not 
paid  for,  or  of  stopping  them  in  transitu,  is  of  the  same  general 
nature.     See  1  Chit.  Gen.  Pr.  645. 

§  4.  Recaption  or  re-entry  on  real  property.  As  recaption  is 
a  remedy  given  to  the  party  himself  for  an  injury  to  his  personal 
property,  so  a  remedy  of  the  same  kind  for  an  injury  to  real 
property  is  sometimes  permitted  by  entry  on  lands  and  tene- 
ments, when  another  person  without  any  right  has  taken  or 
retains  possession  thereof.    This  depends  in  some  measure  on 


60  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

like  reasons  as  the  former  ;  and  like  that,  too,  must  be  peaceable 
and  without  force  or  violence  which  might  endanger  the  public 
peace.  There  is  some  nicety  required  in  defining  and  distinguish- 
ing circumstances  in  which  such  entry  might  be  lawful  or  other- 
wise, and  especially  in  determining  whether  notice  should  be 
given  before  re-entry  and  eviction  to  the  person  who  is  wrong- 
fully in  possession.  3  Broom  &  Had.  Com.  5;  id.,  vol.  2,  p.  4, 
Wait's  ed. 

If  the  owner  enters  by  force  he  may  be  indicted  for  a  breach 
of  the  peace,  but  he  will  retain  the  lawful  possession  of  his 
estate,  and  the  original  wrong-doer  cannot  maintain  a  civil  action 
for  such  regaining  of  the  possession,  so  far  as  it  regards  any 
alleged  injury  to  the  house  or  land,  or  for  the  expulsion.  Willard 
V.  Warren,  17  Wend.  257;  Winter  v.  Stevens,  9  Allen  (Mass.), 
526 ;  Krevet  v.  Meyer,  24  Mo.  107 ;  Newton  v.  Harland,  1  M.  & 
Gr.  644 ;  Harvey  v.  Brydges,  14  M.  &  W.  437 ;  1  Exch.  261. 
The  party  thus  turned  out  may,  however,  maintain  an  action  for 
any  unnecessary  personal  injury  which  he  may  have  sustained, 
or  for  any  damage  to  his  furniture  which  could  have  been 
avoided.  And  he  may,  in  some  cases,  resort  to  proceedings 
under  the  statute  relating  to  forcible  entries  and  detainers.  Peo- 
ple ex  rel.  Kearney  v.  Carter,  29  Barb.  208  ;  People  ex  rel.  Gault 
V.  Van  Nostrand,  9  Wend.  50 ;  Jackson  d.  Staiishury  y .  Farmer, 
id.  201. 

But  he  cannot  maintain  this  proceeding  if  he  has  no  right  of 
possession  of  such  premises.  People  ex  rel.  Cooper  v.  Fields,  1 
Lans.  222 ;  S.  C,  58  Barb.  270  ;  People  ex  rel.  Molnroyv.  Reed., 
11  Wend.  157.  Upon  the  question  of  a  right  to  maintain  pro- 
ceedings for  a  forcible  entry  and  detainer  in  such  a  case,  the 
authorities  are  not  entirely  in  harmony. 

ARTICLE  X. 

ABATEMEISTT  OF    NUISANCE. 

Section  1.  In  general.  Another  species  of  remedy  by  the  mere 
act  of  the  party  injured  is  the  abatement  or  removal  of  a  nui- 
sance. It  may  be  observed,  generally,  that  whatsoever  unlaw- 
fully annoys  or  does  damage  to  another  is  a  nuisance,  and 
such  nuisance  may  sometimes  be  abated,  that  is,  taken  away 
or  removed,  by  the  party  aggrieved  thereby,  provided  he  does 
not  commit  any  riot  in  doing  it.  Nuisances  may  be  public  or 
private.    A  public  or  common  nuisance  is  such  an  inconveni- 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  61 

ence  or  public  offense  as  annoys  the  wliole  community  in  gene- 
ral, and  not  merely  some  particular  person. 

A  private  nuisance  is  any  thing  unlawfully  and  tortiously 
done  to  the  hurt  or  annoyance  of  the  person,  or  of  the  lands, 
tenements  or  hereditaments  of  another. 

§  2.  Priyate  nuisances.  The  reason  why  the  law  allows  the 
abatement  of  a  nuisance,  private  or  public,  by  any  individual 
annoj^ed  by  it,  is  because  injuries  of  this  kind,  which  obstruct 
or  annoy  such  things  as  are  of  daily  convenience  and  use,  require 
an  immediate  remedy,  and  cannot  wait  for  the  slow  progress  of 
the  ordinary  forms  of  justice.  To  enumerate,  in  this  place,  the 
instances  in  which  a  party  may  abate  a  private  nuisance,  is  not 
intended,  but  merely  to  state  some  of  the  general  rules  recognized 
by  law,  and  to  be  observed  by  the  parties  resorting  to  this  mode 
of  relief. 

Where  a  nuisance  was  occasioned  by  the  tortious  misfeasance 
or  malfeasance  of  another,  the  party  thereby  injured  may,  in 
general,  abate  the  nuisance  immediately,  and  without  any  pre- 
vious notice  or  request  ;  but  if  the  nuisance  be  merely  continued 
by  a  party  who  did  not  erect  it,  or  when  it  consists  in  the  omis- 
sion of  a  party,  he  ought  to  be  requested  to  remove  it  before  the 
party  injured  can  himself  remove  the  injury  ;  for  nuisances,  by 
an  act  of  commission,  are  committed  in  defiance  of  those  whom 
such  nuisances  injure,  and  the  injured  party  may  abate  them 
without  notice  to  the  person  who  committed  them.  Jones  y.  Wil- 
liams, 11  M.  &  W.  176.  But  the  law  does  not  sanction  the 
abatement  by  an  individual  of  nuisances  from  omission,  except 
that  of  cutting  branches  of  trees  which  overhang  a  public  road 
or  the  private  property  of  the  person  who  cuts  them  ;  or  remov- 
ing obstructions  from  a  public  highway,  where  special  injury  is 
done  to  the  party  so  abating  it.  Northrop  v.  Burrows,  10  Abb. 
365.  See,  also,  Rogers  v.  Rogers,  14  Wend.  131  ;  Grijjitli  v. 
McCullum,  46  Barb.  561 ;  Howard  v.  Ro'bMns,  1  Lans.  63.  In 
removing  a  private  nuisance,  care  should  be  taken  not  to  abate 
more  or  to  go  further  than  to  restore  the  party  injured  to  the 
enjoyment  of  his  right  as  it  existed  before  the  nuisance  was 
created ;  for,  if  a  party  goes  beyond  this,  and  unnecessarily 
injures  or  destroys  the  property  constituting  such  nuisance,  he 
will  be  guilty  of  an  illegal  act.  lb.  See  1  Wait's  Law  &  Prac. 
748  to  754. 

A  house  which  is  wrongfully  built  upon  a  common,  and  which 
obstructs  the  right  of  common,  may,  after  notice  and  request  by 
a  commoner  to  remove  from  the  house,  be  pulled  down,  although 


62  OF  EIGHTS,  REMEDIES  AND  ACTIONS. 

the  builder  and  his  family  were  actually  inhabiting  and  present 
in  the  house.  Dames  v.  Williams^  16  Q.  B.  546.  See  Perry  v. 
Fitzliowe,  8  id.  757.  So  of  a  person  who  enters  upon  the  lands 
of  another,  and  unlawfully  builds  a  house.  Burling  v.  Read^ 
11  Q.  B.  904  ;  Damson  v.  Wilson,  id.  890. 

§  3.  Public  nuisances.  Private  citizens  are  permitted,  in  many 
cases,  to  abate  public  nuisances  without  the  interposition  of  any 
legal  authority.  It  is  clear  that  any  one  may,  in  some  cases, 
justify  the  removal  of  a  common  nuisance,  whether  on  land  or 
on  water.  If  a  gate  or  wall  be  erected  across  a  public  highway, 
so  as  to  constitute  a  common  nuisance,  then  any  person  passing 
along  such  highway  may  tear  it  down  or  destroy  it  if  necessary 
to  restore  the  highway  to  its  proper  condition  for  his  passage 
along  it.  Northro'p  v.  Burrows,  10  Abb.  365.  But  he  cannot 
lawfully  do  any  needless  injury  to  such  property,  even  though 
it  be  in  a  public  highway,  for  if  he  wantonly  or  unnecessarily 
destroys  it  he  will  be  liable  to  an  action.  Rogers  v.  Rogers,  14 
Wend.  131 ;  Goldsmith  v.  Jones,  43  How.  416 ;  Strickland  v. 
Woodwortli,  3  N.  Y.  S.  C,  T.  &  C,  286. 

A  fence  so  built  as  to  encroach  upon  a  public  highway  is  a 
public  nuisance,  and  yet,  if  there  is  sufficient  room  for  persons 
to  travel  along  such  highway,  it  will  be  an  unlawful  act  for  a 
traveler  or  other  person  to  remove  or  destroy  such  fence.  Grif- 
fitTi  V.  McCullum,  46  Barb.  561;  narrower  v.Ritson,  37  id.  301; 
PeckTiam  v.  Henderson,  27  id.  207;  Howard  v.  RohMns,  1  Lans. 
63.  It  is  not  every  nuisance  that  may  be  removed  by  a  private 
person,  for  although  a  fence  is  so  far  an  encroachment  upon  a 
public  highway  as  to  constitute  a  public  nuisance,  yet  an  indi- 
vidual cannot  lawfully  remove  it  unless  it  prevents  his  passage 
along  such  highway.  lb.  Dimes  v.  Petley,  15  Q.  B.  276;  Bridge 
V.  Grand  Junction  Railway  Co.,  3  M.  &  W.  244 ;  Davis  v. 
Mann,  10  id.  548;  Mayor  of  Colchester  v.  Brooke,  7  Q.  B.  339 ; 
Bateman  v.  Bluck,  18  'id.  870;  Roberts  v.  Rose,  3  H.  «&  C.  162  ; 
L.  R.,  1  Ex.  82. 

ARTICLE  XI. 

DISTEESS   AND    SEIZURE   OF   CATTLE. 

Section  1.  In  general.  The  taking  of  cattle  or  chattels,  as  a  dis- 
tress, whether  damage  feasant  or  for  rent,  where  that  is  permitted, 
or  for  other  claims,  is  also  one  of  those  remedies  permitted  by 
law.    See  1  Wait's  Law  and  Prac.  788  to  791. 

§  2.  Damage  feasant.  When  the  animals  of  one  person  unlaw- 
fully go  upon  the  lands  of  another  person  and  there  do  damage, 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  63 

as  b}^  treading  down  the  grass,  grain  or  other  productions  of  the 
earth,  the  owner  of  such  land  may  unlawfully  seize  such  ani- 
mals instead  of  bringing  an  action  for  the  trespass.  This  remedy 
exists  at  the  common  law,  but  it  is  frequently  modified  or  regu- 
lated by  statutes.  See  2  R.  S.  617  to  521.  Some  of  the  rules  to 
be  observed  in  pursuing  this  remedy  will  be  briefly  noticed.  If 
a  party  elects  to  distrain  cattle  or  chattels  damage  feasant,  he 
must  follow  strictly  the  course  pointed  out  by  the  statute. 

No  one  ought  to  distrain  cattle  damage  feasant  unless  he  has 
the  legal  title  or  the  right  to  the  possession  of  the  land  upon 
which  they  are  found. 

The  remedy  by  distress,  given  by  the  statute,  is  cumulative, 
and  the  distrainer  may,  if  he  pleases,  pursue  the  common-law 
remedy  by  action  of  trespass.  Before  making  a  distress,  the 
party  should  consider  whether  the  trespass  was  not  justifiable 
by  reason  of  his  own  omission  to  keep  his  fences  in  repair.  The 
cattle  must  be  taken  while  actually  upon  the  land  and  in  the 
very  act  of  doing  damage,  and  not  after  it  is  over,  or  at  least  not 
after  they  have  escaped  from  the  land,  even  though  the  owner  of 
the  land  was  pursuing  them,  and  the  owner  of  the  cattle  drove 
them  oflF  for  the  purpose  of  preventing  the  distress. 

A  horse  cannot  be  distrained  if  there  be  a  rider  upon  him  at 
the  time.  Storey  v.  Robinson,  6  Term.  R.  138.  Nor  can  a  horse 
and  cart  be  so  taken,  if,  at  the  time  of  distraining  them,  they  are 
in  the  actual  possession,  care  and  use  of  the  party  driving  them. 
Field  V.  Adames,  12  Ad.  &  E.  649. 

The  cattle  taken  cannot  legally  be  impounded  after  an  ade- 
quate tender  of  amends  made  before  impounding. 

Again,  the  cattle  distrained  must  not  be  beaten  or  wounded, 
or  worked,  or  used.  For,  doing  either  of  these  acts  would  ren- 
der the  party  distraining  liable  to  an  action. 

The  manner  of  disposing  of  a  distress  is  pointed  out  in  this 
State  by  statute.    2  R.  S.  517  to  521. 

The  statutes  relating  to  cattle  running  in  public  highways  will 
be  found.  Laws  1862,  cL.  459 ;  Laws  1867,  ch.  814  ;"Laws  1869, 
ch.  424 ;  Laws  1872,  ch.  776. 

For  some  of  the  decisions  upon  the  question  see  Rockioell  v. 
Nearing,  35  N.  Y.  (8  Tiff.)  302  ;  Campbell  v.  Evans,  64  Barb. 
bm ;  46  N.  Y.  (6  Hand)  356  ;  Fox  v.  Dnnckle,  55  Barb.  431 ;  38 
How.  ]36  ;  Leamtt  v.  Thompson,  56  Barb.  642;  S.  C.  reversed,  52 
N.  Y.  (7  Sick.)  62  ;  McConnell  v.  Van  Aerman,  66  Barb.  534 ; 
Squares  v.  Campbell,  41  How.  193. 


64  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 


ARTICLE  XII. 

RETAIKER,    REMITTER   AND   LIEN". 

Section  1.  Retainer.  Retainer  is  the  act  of  witWiolding  what 
a  party  has  in  his  hands  by  virtue  of  some  right.  An  executor 
or  administrator  has,  in  some  cases,  a  right  to  retain  a  debt  or 
sum  due  him  from  the  estate,  or  the  testator  or  intestate.  A  sole 
executor  may  retain  in  those  cases  where,  if  the  debt  had  been 
due  to  a  stranger,  the  latter  might  have  sued  and  recovered  the 
sum  of  such  executor,  whether  the  debt  were  due  to  himself  or 
due  to  him  in  right  of  another,  or  to  another  in  trust  for  him. 
If  there  are  several  executors,  and  one  of  them  has  a  claim 
against  the  estate  of  the  deceased,  he  may  retain  it  with  or  with- 
out the  consent  of  his  co-executors  ;  and  if  there  are  several 
creditors  among  the  executors,  each  of  the  same  degree,  and  the 
estate  is  insolvent,  they  may  retain  pro  rata. 

The  right  of  retainer  may  be  exercised  where  the  deceased  was 
bound  alone,  where  he  was  bound  with  others,  and  where  the 
executor  or  the  obligee  is  also  executor  of  the  obligor. 

As  there  is  quite  a  diversity  in  the  practice  of  different  States 
and  countries  in  relation  to  the  priority  of  claims,  there  will  be 
no  attempt  at  an  enumeration  of  them.  Funeral  expenses  and 
physicians'  bills  usually  have  a  preference  over  other  claims. 

Where  the  nature  of  the  claim  is  arbitrary  and  unascertained, 
as  in  the  case  of  a  claim  for  damages  for  a  tort,  there  cannot  be 
a  retainer ;  but,  where  the  claim  is  for  damages  for  the  breach 
of  a  pecuniary  contract,  there  may  be  a  retainer,  as  there  is  a 
certain  measure  of  damages.  An  executor  is  not  bound  to  plead 
the  statute  of  limitations  against  a  just  debt,  and  therefore  that 
statute  does  not  operate  against  his  claim. 

In  case  the  estate  is  insolvent,  the  executor's  right  to  retain  is 
limited  by  the  rights  of  other  creditors  who  are  equally  entitled 
with  himself  to  payment.  At  common  law  a  creditor  obtained 
an  advantage  by  obtaining  the  first  judgment  against  an  executor 
and,  as  an  executor  could  not  sue,  he  might  retain  his  whole 
claim  in  preference  to  other  creditors.  This  rule  is  abrogated  in 
some  of  the  States,  and  is  in  force  in  others. 

§  2.  Remitter.  This  takes  place  when  he  who  has  the  true 
property  in  lands  is  out  of  possession  and  has  no  right  to  enter 
without  recovering  possession  in  an  action,  but  afterward  has 
the  freehold  cast   upon  him  by  some   subsequent,  though  of 


OF  KIGHTS,  REMEDIES  AND  ACTIONS.  65 

course,  defective  title.  In  this  case  he  is  remitted  or  put  back, 
by  operation  of  law,  to  his  ancient  or  more  certain  title.  This 
right  of  entry  which  he  has  gained  by  a  bad  title  is,  ipso  facto^ 
annexed  to  his  own  inherent  good  one,  and  the  defeasible  estate 
is  utterly  defeated  and  annulled  by  the  instantaneous  act  of  law 
without  his  participation  or  consent.  The  reason  assigned  for 
this  rule  is,  that,  being  so  remitted,  the  owner  has  no  means  of 
asserting  his  title,  because,  being  in  possession,  he  cannot  sue 
himself,  and,  to  prevent  his  loss,  the  law  places  him  in  the  same 
situation  as  if  he  had  established  his  right  by  action  or  suit. 
But,  to  enable  the  owner  of  the  land  to  take  advantage  of  this 
principle,  the  title  must  be  cast  upon  him  by  the  law,  as  by 
descent ;  for,  if  he  undertakes  to  buy  the  subsequent  estate  or 
right  of  possession,  he  is  considered  as  having  waived  his  prior 
right,  and  therefore  he  is  not  remitted.  Whenever  this  right  of 
remitter  exists,  it  takes  place  regardless  of  the  will  or  intention 
of  the  party  benefited.  He  is  remitted  nolens  'Golens.  But 
there  is  no  remitter  to  a  right  which  is  extinguished,  or  for  which 
the  party  has  no  right  of  action,  as  in  the  case  of  a  claim  barred 
by  the  statute  of  limitations.  See  Doe  d.  Daniell  v.  Woodroffe, 
10  M.  &  W.  608  ;  15  id.  768  ;  2  H.  L.  Gas.  811. 

§  3.  Lien.  A  lien,  when  considered  as  a  remedy  in  the  hands 
of  the  party,  may  be  defined  as  the  right  of  detaining  the  prop- 
erty of  another  until  some  claim  is  satisfied.  There  may  be  liens 
which  arise  by  operation  of  law,  or  which  are  created  by  the  ex- 
press agreement  of  the  parties.  A  right  to  retain  property  in 
respect  of  money  or  labor  expended  on  some  particular  prop- 
erty is  a  particular  lien.  A  general  lien  is  one  which  binds  all 
the  property  of  the  debtor  which  may  happen  to  be  in  the  hands 
of  his  creditor.  The  general  rule  is,  that  a  party, who  is  in  posses- 
sion of  property  by  virtue  of  a  valid  lien,  may  retain  the  posses- 
sion until  his  claim  is  paid.  This  claim  may  be  lost  or  waived 
by  any  act  of  the  parties  by  which  it  may  be  surrendered  or 
become  inapplicable. 

In  general,  possession  is  not  only  essential  to  the  creation,  but 
also  to  the  continuance,  of  the  lien;  it  may,  therefore,  be  lost  by 
voluntarily  parting  with  the  possession  of  the  goods. 

The  riglit  of  the  holder  of  the  lien  is  generally  confined  to  the 
mere  right  of  retainer.  Whether  an  authoritj^  to  sell  exists,  is  a 
matter  to  be  carefully  examined  before  exercising  any  such 
power.  In  some  cases  a  court  of  equity  will  decree  a  sale  to 
satisfy  such  lien.     See  "Lien." 

V©L.  I.  —  9 


66  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

ARTICLE  XIII. 

REDRESS   BY   JOINT   ACTS   OF   THE   PARTIES. 

Section  1.  In  general.  There  are  two  remedies  which  may  te 
secured  by  the  joint  act  of  both  parties,  and  thus  obviating  the 
necessity  for  an  action.  One  is  by  an  accord,  and  the  other  by 
arbitration.    These  will  be  briefly  noticed  in  their  order. 

§  2.  Accord.  An  accord  is  the  settlement  of  a  dispute,  or  the 
satisfaction  of  a  claim,  by  an  executed  agreement  between  the 
party  injuring  and  the  party  injured.  Some  of  the  requisites  of 
an  accord  are  the  following  :  It  must  be  legal;  it  must  be  ad- 
vantageous to  the  party  claiming  the  performance  of  a  contract, 
or  damages  for  an  injury;  it  must  be  certain;  the  defendant  must 
be  privy  to  the  contract,  as  an  accord  from  a  stranger  is  not  suffi- 
cient; the  accord  must  be  executed,  for  until  then  it  is  no  satis- 
faction; the  acceptance  of  a  collateral  thing  of  value  is  a  good 
satisfaction;  so  is  a  mutual  agreement  to  discontinue  two  cross- 
actions.  An  agreement  to  pay  a  less  sum  of  money  in  discharge 
of  a  larger  money  debt  is  not  a  good  accord,  unless  the  money  is 
paid  before  the  larger  sum  was  due,  or  at  a  different  place.  The 
effect  of  a  valid  accord  and  satisfaction  is  to  discharge  the  claim 
made,  and  to  bar  any  future  action  upon  it.  See  1  "Waif  s  Law 
and  Prac.  1036  to  1042,  and  see  "Arbitration." 

§  3.  Arbitration.  An  arbitration  is  a  submission  and  reference 
of  a  matter  in  dispute  concerning  property,  or  in  relation  to  a 
personal  wrong,  to  the  decision  of  one  or  more  persons,  called 
arbitrators,  who  are  to  render  a  judgment  thereon,  called  an 
award.  The  general  subject  of  arbitrations  will  be  explained 
elsewhere  and  the  subject  will  be  dismissed,  witli  the  general  re- 
mark, that  a  valid  submission  and  a  proper  award  thereon  will 
bar  any  action  upon  the  claim  submitted  and  passed  upon.  See 
1  Wait's  Law  and  Prac.  1011  to  1036  ;  and  see  "Arbitration." 

ARTICLE  Xiy. 

REDRESS  BY   OPERATION  OF  LAW. 

Section  1.  In  general.  A  part  of  the  remedies  of  this  nature  have 
already  been  noticed  under  another  head.  See  Retainer ;  Remit- 
ter ;  Lien. 

§  2.  Set-off.  The  right  of  a  party  to  set  off  liis  demand  against 
the  claim  of  another  person  against  him  did  not  exist  at  common 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  67 

law.  The  principle  of  set-off  is,  that  when  one  man  has  a  claim 
for  a  sum  of  money  against  another,  and  is  also  indebted  to  him, 
he  may  consider  his  claim  to  be  a  discharge  or  extinguishment 
of  his  debt,  if  it  be  equal  in  amount,  or  jpro  tanto^  if  unequal. 
This  rule  is  founded  upon  reason  and  justice,  and  it  tends  to 
prevent  the  unnecessary  multiplication  of  suits  with  their  attend- 
ant inconveniences  and  costs.  As  the  subject  of  set-off  will  be 
fully  explained  in  this  work,  no  further  notice  is  here  necessary, 
except  to  state  that  the  right,  as  it  now  exists,  is  founded  upon 
various  statutes.  See,  also,  1  Wait's  Law  and  Prac.  966  to  979, 
and  "Set-off." 

§  3.  Marriage  of  debtor  and  creditor.  By  the  common  law, 
if  a  woman  married  her  creditor  or  her  debtor,  in  either  case  the 
debt  was  absolutely  extinguished.  No  discussion  of  this  matter 
is  to  be  expected  here,  as  the  mere  mention  of  it  will  call  atten- 
tion to  this  subject,  which  is  all  that  is  needed. 

ARTICLE  XV. 

CAUTIONS    IN    RELATION  TO   RESORTING  TO  THESE    REMEDIES    WITHOUT 

ACTION. 

Section  1.  In  general.  It  is  to  be  remembered  that  although 
the  law  allows  an  extrajudicial  remedy,  yet  that  remedy  is 
not  compulsory,  and  does  not  exclude  the  ordinary  course  of 
justice;  it  is  only  an  additional  weapon  put  into  the  hands  of 
persons  in  particular  instances,  when  natural  equity  or  the 
peculiar  circumstances  of  their  situation  require  a  more  expedi- 
tious remedy  than  the  formal  process  of  a  court  of  judicature  can 
furnish.  In  many  cases  the  party  may  resort  to  both  remedies. 
A  party  who  is  assaulted  may  defend  himself  from  violence 
and  yet  may  afterward  bring  his  action  for  the  assault.  A  person 
may  retake  his  goods  in  a  fair  and  peaceable  way,  and  the 
recaption  does  not  bar  his  subsequent  action,  although  the  return 
may  mitigate  damages.  A  party  may  enter  on  lands,  if  he  has  a 
right  of  entr3^  or  may  demand  possession  by  action.  So  he  may 
abate  a  nuisance  or  call  uj)on  the  law  to  do  it  for  him.  There  is 
one  general  consideration  which  ought  always  to  be  borne  in 
mind,  and  that  is,  there  are  cases  in  which  a  resort  to  tliese 
remedies,  by  the  act  of  the  party,  will  bar  him  from  bringing  a 
subsequent  action  for  the  same  subject-matter. 

As  this  title  was  designed  to  be  a  mere  statement  of  general 
rules  for  the  information  of  the  student,  and  for  the  convenience 
of  the  practitioner,  rather  than  a  treatise  upon  the  topics  men- 


68  OF  RIGHTS,  REMEDIES  AND  ACTIONS. 

tioned,  the  reader  will  be  required  to  examine  the  other  parts  of 
this  work  whenever  it  may  become  important  to  examine  the 
law  applying  these  rules  to  any  particular  case. 


TITLE  IX. 

OF  EXTRAOKDINAEY  EEMEDIES  WHICH  ARE  NOT  USUALLY 
TERMED  ACTIONS. 

ARTICLE  L 

OF  MANDAMUS. 

Section  1.  In  generaL  The  writ  of  mandamus  has  long  been 
an  efficient  mode  of  enforcing  the  prompt  discharge  of  duties  by 
natural  persons,  corporations,  or  inferior  courts,  by  requiring 
them  to  do  some  particular  thing  specified  in  the  writ  which  per- 
tains to  their  oflSce  or  duty.  It  is,  in  some  cases,  one  of  the  most 
valuable  remedies  that  the  law  has  placed  in  the  hands  of  the 
courts.  The  cases  in  which  the  writ  will  be  granted  or  refused 
will  be  fully  discussed  in  a  subsequent  place  in  this  work.  See 
Mandamus  ;  see,  also,  5  Wait's  Prac.  548-602. 

ARTICLE  II. 

OF   INJUNCTIONS. 

Section  1.  In  general.  An  injunction  may  be  defined  as  a 
judicial  writ  or  order,  commanding  a  party  either  to  do  a 
particular  thing  or  to  refrain  from  doing  a  particular  thing 
according  to  the  equities  of  the  case  in  which  it  is  employed. 
It  is,  in  general,  a  prohibitory  writ  or  order,  issuing  from  the 
equity  side  of  the  court,  restraining  a  party  or  parties  from 
doing,  in  person  or  by  agent,  any  act  which  appears  unjust  or 
inequitable  so  far  as  it  regards  the  rights  of  the  party  in  whose 
behalf  the  writ  or  order  issues.  See  the  title  "Injunction,"  and 
also,  2  Wait's  Prac.  1-128. 

ARTICLE  IIL 

OF   PEOHIBITION. 

Section  1.  In  generaL  An  injunction,  when  granted  to  restrain 
proceedings  in  another  court,  resembles,  in  some  particulars,  a 
writ  of  prohibition,  but  differs  from  it  essentially  in  the  mode  of 
application. 


OF  RIGHTS,  REMEDIES  AND  ACTIONS.  69 


A  prohibition  is  a  remedy  against  an  encroacliment  of  juris- 
diction ;  issues  only  from  a  superior  court ;  is  granted  on  the 
suggestion  that  the  court  to  which  it  is  directed  has  not  the  legal 
cognizance  of  the  cause  ;  and  it  is  directed  to  the  judge  of  the 
inferior  court,  as  well  as  to  the  parties  to  the  cause.  See  title 
" Prohibition,"  also  2  Wait's  Prac.  1,  and  6  id.  603-612. 

t 

ARTICLE  IV. 

OF  QUO  WARKANTO. 

Section  1.  In  general.  This  writ  is  issued  for  the  purpose  of 
inquiring  by  what  right  a  person  or  a  corporation  claims  an 
office  or  a  franchise.  See  further,  title  "  Quo  Warranto,"  and 
also  5  Wait's  Prac.  613-632. 


ARTICLE  V. 

OF  CERTIORARI. 

Section  1.  In  generaL  In  this  State  the  writ  of  certiorari  is 
both  a  common-law  and  a  statutory  process.  See  5  Wait's  Prac. 
455-500,  and  title  "  Certiorari." 

ARTICLE  VI. 

OF   INTERPLEADER. 

Section  1.  In  generaL  Interpleader  is  that  remedy  which  is 
given  to  a  person  standing  in  the  position  of  a  mere  stakeholder, 
against  whom  two  or  more  persons  severally  make  claim  for  the 
same  thing,  under  different  titles,  or  in  separate  interests ;  and 
who,  not  knowing  to  which  of  the  claimants  he  ought  of  right  to 
render  the  debt  or  duty  claimed,  or  to  deliver  the  property  in 
ins  custody,  is  either  molested  by  an  action  or  actions  brought 
against  him,  or  fears  that  he  may  suffer  injury  from  the  conflict- 
ing claims  of  the  parties;  and  who,  therefore,  applies  to  the 
court,  not  only  to  protect  him  from  being  compelled  to  pay  or 
deliver  tlie  thing  claimed  to  both  the  claimants,  but  also  from 
the  vexation  attending  upon  the  suits,  which  are,  or  may  be, 
instituted  against  him  upon  the  deposit  in  court  of  the  thing 
claimed.  See,  further,  1  Wait's  Prac.  165-180  ;  and,  also,  post, 
title  "Interpleader." 


70  GENERAL  PEINCIPLES  OF  CONTEACTS. 


CHAPTEE  II. 

OF  SOME  OF  THE  GENERAL  PRINCIPLES  OF  THE  LAW 
RELATING  TO  ACTIONS  FOUNDED  UPON  CONTRACT, 
UPON  EQUITIES,  UPON  LEGAL  DUTIES,  OR  UPON 
TORTS ;  OR  RELATING  TO  DEFENSES  TO  ACTIONS. 


TITLE  I. 

OF  SOME  OF  THE  GENEEAL  PEINCIPLES   OF  CONTEACTS. 

ARTICLE  I. 

DEFINITION". 

Section  1.  In  generaL  A  contract  is  a  deliberate  engagement 
between  competent  parties,  upon  a  legal  consideration,  to  do,  or 
to  abstain  from  doing,  some  act.  1  Story  on  Coni,  §  1.  "A  con- 
tract, in  legal  contemplation,  is  an  agreement  between  two  or 
more  parties,  for  the  doing  or  the  not  doing  of  some  particular 
thing."  1  Pars,  on  Cont,  6.  The  essentials  of  a  contract,  as  stated 
by  Comyn,  are,  1st.  A  person  able  to  contract ;  2d.  A  person 
able  to  be  contracted  with ;  3d.  A  thing  to  be  contracted  for; 
4th.  A  good  and  sufficient  consideration  ;  5th.  Clear  and  explicit 
words  to  express  the  contract;  6th.  The  assent  of  both  contract- 
ing parties.  These  general  views  may  be  thus  expressed.  A 
contract  is  an  intelligent,  deliberate,  and  voluntary  transaction 
or  agreement,  express  or  implied ;  founded  upon  a  sufficient 
legal  consideration ;  between  two  or  more  parties  legally  compe- 
tent to  contract ;  to  do  or  to  omit  the  doing  of  some  legal  act  or 
thing,  expressed  in  the  terms  of  the  agreement,  or  implied  by  or 
resulting  from  them  by  implication  of  law.  See  1  Chit,  on 
Cont.  11. 

Every  contract  includes  a  concurrence  of  intention  between 
two  parties,  one  of  whom  promises  something  to  the  other,  who 
on  his  part  accepts  such  promise ;  but  it  does  not  necessarily 
include  a  mutuality  or  reciprocity  of  contract  and  liability. 
There  must  be  at  least  two  parties  to  every  contract,  a  promisor 
or  party  making  the  promise,  and  a  promisee  or  party  to  whom 


GENERAL  PRINCIPLES  OF  CONTRACTS.  71 

the  promise  is  made ;  but  there  may  be  only  one  contracting 
party.  Thus,  if  A.  promises  to  pay  B.  the  price  of  goods  to  be 
sold  by  the  latter  to  C,  B.  contracts  no  obligation  to  sell  goods 
to  C,  though,  if  he  does,  the  liability  of  A.  attaches,  and  his 
engagement  becomes  absolute  and  binding.  Add.  on  Cont.  2. 
And  where,  by  the  terms  of  an  agreement  between  A.  and  B.,  in 
consideration  that  A.  will  pay  certain  notes  upon  which  he  is  an 
indorser,  B.  agrees  to  pay  him  a  certain  sum,  although  there  be 
no  obligation  upon  A.  to  pay  the  notes,  and  therefore  no  mutual- 
ity in  the  contract,  yet  if  he  does  pay  them,  he  furnishes  a  con- 
sideration for  the  agreement  and  may  enforce  it  against  B. 
L'  Amoreux  v.  Gould,  7  N.  Y.  (3  Seld.)  349 ;  Sanders  v.  Gillespie, 
69  id.  (14  Sick.)  250.  Where  a  merchant  agrees,  that,  if  a  pur- 
chaser will  buy  goods  of  him,  he  will  sell  them  to  such  purcha- 
ser at  as  low  prices  as  he,  the  merchant,  sells  the  same  goods  to 
other  buyers  ;  and,  on  the  faith  of  such  promise,  the  purchaser 
buys  large  quantities  of  goods  and  pays  the  prices  named  by 
such  merchant,  who  has  sold  similar  goods  to  other  buyers  at 
lower  prices,  an  action  will  lie  by  such  purchaser  to  recover  the 
amount  overpaid,  even  though  the  purchaser  did  not  agree  to 
purchase  any  goods  of  such  merchant.  Holtz  v.  Schmidt,  59  N. 
Y.  (14  Sick.)  253.  Such  a  promise,  although  invalid  when  made, 
for  want  of  mutuality  of  obligation,  will  still  become  valid  and 
binding  upon  a  performance  by  the  promisee  of  that  in  consid- 
eration of  which  such  promise  was  made.  Willetts  v.  Sun  Mu- 
tual Ins.  Co.,  45  N.  Y.  (6  Hand)  45;  6  Am.  Rep.  31;  Adams  v. 
Bonnes s,  62  Barb.  326;  Hammon  v.  Sliepard,  40  How.  Pr.  452 ; 
29  id.  188;  Coj^e  v.  AlMoison,  8  Exch.  185,  187,  note. 

When  there  is  a  mutual  contract  binding  one  or  more  persons 
toward  another  or  several  others,  the  contract  is  bilateral. 
When  the  contract  binds  one  person  to  another  without  any 
engagement  being  made  by  the  latter,  it  is  uuilateral,  as  in  the 
case  of  bills  and  notes,  bonds,  and  the  like.  Contracts,  also,  are 
either  principal  or  accessorial;  the  first,  are  those  which  are 
entered  into  by  the  parties  on  their  own  account ;  the  second,  are 
those  which  are  entered  into  for  assuring  the  performance  of 
another  principal  contract,  such  as  guarantees  or  engagements  of 
sureties.  Add.  on  Cont.  2.  In  its  widest  sense  the  term  "contract" 
includes  records  and  specialties,  but  the  term  is  usually  employed 
to  designate  simple  or  parol  contracts  only.  By  parol  contracts 
is  to  be  understood,  not  only  verbal  and  unwritten  contracts,  but 
all  contracts  not  of  record  nor  under  seal.  1  Story  on  Cont.,  §  1; 
1  Chit,  on  Cont.  5. 


72  GENERAL  PEINCIPLES  OF  CONTRACTS. 


ARTICLE  II. 

OF   THE   DIFFERENT   KINDS   OF   CONTRACTS,    AND    OF   THEIR    REQUISITES. 

Section  1.  Of  contracts  of  record.  Contracts  of  record  con- 
sist of  judgments,  recognizances,  and  statutes  staple. 

§  2.  Of  sealed  contracts  or  specialties.  Contracts  or  obliga- 
tions under  seal,  or  specialties,  such  as  deeds  and  bonds, 
are  instruments  which  are  not  merely  in  writing,  but  are  also 
sealed  by  the  party  to  be  bound  by  them,  and  delwered  by  him 
to,  or  for  the  benefit  of  the  person  to  whom  the  liability  is  there- 
by incurred.  Neither  a  date,  nor,  at  common  law,  even  the 
signature  of  the  party  is  essential  to  the  validity  of  a  deed.  1 
Chit,  on  Cont.  4.  But  there  cannot  be  a  deed  without  writing, 
sealing,  and  delivery.  lb. 

§  3.  Of  simple  or  unsealed  contracts.  The  term  simple  con- 
tracts includes  not  merely  such  as  are  'cerbal,  but  also  such  as 
have  been  reduced  to  writing^  though  not  sealed  and  delivered. 
The  law  does  not  recognize  a  class  of  contracts,  known  as  con- 
tracts in  writing,  and  distinct  from  verbal  and  sealed  contracts  ; 
since  both  verbal  and  written  contracts  are  included  in  the  class 
of  simple  contracts.  In  other  words,  all  contracts  are  distin- 
guished as  agreements  by  specialty,  or  by  agreements  by  parol, 
and  there  is  no  such  third  class  as  contracts  in  writing.  If  the 
contract  is  merely  written,  but  not  under  seal,  it  is  a  contract  by 
parol,  and  it  has  the  efficacy,  properties,  and  effect  of  a  parol 
contract. 

The  difference,  therefore,  is  not  between  verbal  and  written 
contracts  ;  but  between  parol  or  written  contracts  on  the  one 
hand,  and  specialties  or  contracts  under  seal  on  the  other. 

Some  contracts  are  required  by  statute  to  be  reduced  to  writ- 
ing, and  to  be  signed  or  subscribed  by  the  party  to  be  charged 
thereon,  and  yet  such  a  requirement  relates  rather  to  the  mode 
of  evidencing  the  contract,  than  to  its  essential  requisites  as  a 
valid  contract. 

The  mere  fact  that  a  contract  is  written  and  signed  does  not 
dispense  with  any  of  the  common-law  requisites  of  a  contract. 
There  must  still  be  competent  jDarties,  a  sufficient  consideration, 
and  the  due  assent  of  the  parties. 

§  4.  Of  express  or  implied  contracts.  The  intention  of  the 
parties  to  any  particular  transaction  may  be  gathered  from 
their  acts,  in  connection  with  the  surounding  circumstances,  as 
well  as  from  their  words  ;  and  the  law  therefore  implies,  from 


GENERAL  PEINCIPLES  OP  CONTRACTS.  73 

the  silent  language  of  men's  conduct  and  actions,  contracts  and 
promises  as  forcible  and  binding  as  those  that  are  made  by  ex- 
press words,  or  through  the  medium  of  written  memorials. 
Every  contract  is  founded  upon  the  mutual  agreement  of  the 
parties ;  and  that  agreement  may  either  be  formally  stated  in 
words,  or  committed  to  writing,  or  it  may  be  a  legal  inference, 
drawn  from  the  circumstances  of  the  case,  in  order  to  explain  the 
situation,  conduct,  and  relation  of  the  parties.  When  the  agree- 
ment is  formal,  and  stated  either  verbally  or  in  writing,  it  is 
usually  called  an  express  contract.  When  the  agreement  is 
matter  of  inference  and  deduction,  it  is  called  an  iinplied 
contract. 

Both  species  of  contract  are,  however,  equally  founded  upon 
the  actual  agreement  of  the  parties,  and  the  only  distinction 
between  them  is  in  regard  to  the  mode  of  proof,  which  belongs 
to  the  law  of  evidence.  In  an  implied  contract,  the  law  only 
supplies  that  which,  although  not  stated,  must  be  presumed  to 
have  been  the  agreement  intended  by  the  parties. 

An  implied  contract  is  one  which  reason  and  justice  dictate, 
and  which  the  law  presumes,  therefore,  that  every  man  under- 
takes to  perform.  And  in  implied  contracts,  the  law  implies 
from  the  antecedent  acts  of  persons,  what  their  obligations  are  to 
be  ;  whereas,  if  an  express  contract  is  made,  the  parties  them- 
selves thereby  define  or  assume  to  define  them.  In  implied  con- 
tracts, however,  the  law  does  not  vary  or  introduce  new  terms 
into  an. existing  contract  or  agreement;  it  merely  declares,  that 
particular  acts,  unaccompanied  or  unexplained  by  express  stip- 
ulations, give  rise  to  particular  duties  or  liabilities  ;  and  it  then 
proceeds  as  though  the  parties  had  precisely  and  expressly 
stipulated  for  their  performance.  Sceva  v.  True,  53  N.  H.  627, 
632,  633.  The  idea  of  contract  implied  bylaw  is  a  legal  fiction, 
invented  and  used  for  the  sake  of  the  remedy,  to  enforce  the 
performance  of  a  legal  duty.  lb. 

"  A  great  mass  of  human  transactions  depends  upon  implied 
contracts  ;  upon  contracts  which  are  not  written,  but  which  grow 
out  of  the  acts  of  the  parties.  In  such  cases  the  parties  are  sup- 
posed to  have  made  those  stipulations,  which,  as  honest,  fair, 
and  just  men,  they  ought  to  have  made.  When  the  law  assumes 
that  they  have  made  these  stipulations,  it  does  not  vary  their 
contract,  or  introduce  new  terms  into  it,  but  declares,  that  certain 
acts,  unexplained  by  compact,  impose  certain  duties,  and  that 
the  parties  had  stipulated  for  their  performance."  Marshall, 

Vol.  I.  — 10 


74  GENERAL  PRINCIPLES  OF  CONTRACTS. 

Cli.  J.    Ogden  v.  Saunders^  13  Wheat.  341.    See,  also,  United 
States  V.  Russell,  13  Wall.  623,  630. 

But,  while  the  law  will  thus  imply  a  promise  in  a  proper  case, 
it  must  be  remembered  that  the  law  will  not  imply  a  promise 
when  there  is  an  express  agreement  upon  the  subject,  whether 
such  agreement  be  verbal  or  in  writing.  Harris  v.  Story,  2  E. 
D.  Smith,  364 ;  Lynch  v.  Onondaga  Salt  Co.,  64  Barb.  558 ; 
Yandekarr  v.  Vand-eJcarr,  11  Johns.  122 ;  Walker  v.  Broion,  28 
111.  378 ;  CreigMon  v.  City  of  Toledo,  18  Ohio  St.  447.  A  few 
illustrations  will  serve  to  show  the  nature  of  the  cases  from  which 
the  law  is  said  to  imply  a  promise.  On  the  purchase  of  goods, 
upon  which  no  price  is  iixed,  the  law  implies  that  the  buyer  will 
pay  a  reasonable  price  for  them.  Upon  a  sale  of  chattels  by 
one  who  is  in  possession  of  them,  but  who  is  not  the  owner,  the 
law  implies  a  warranty  of  title  on  the  part  of  the  seller.  So  if  a 
mechanic  agrees  to  do  a  specified  piece  of  work,  the  law  implies 
that  he  will  exercise  due  care,  skill  and  dispatch  in  its  perform 
ance.  If  a  surety  signs  the  bond  of  his  principal  at  his  request, 
there  is  an  implied  contract  on  the  part  of  the  principal  that  he 
will  indemnify  the  surety,  if  he  is  compelled  to  pay  the  bond. 
This  subject  will  be  further  discussed  under  the  title  Assumpsit, 
and  other  appropriate  titles. 

§  5.  Of  executed,  and  of  executory  contracts.  A  contract  may 
be  executed  or  executory.  An  executed  contract  is  one  in  which 
the  object  or  subject-matter  of  the  contract  is  performed ;  or  iu 
other  language,  it  is  a  contract  in  which  nothing  remains  to  be 
done  by  either  party,  and  where  the  transaction  is  completed  at 
the  moment  that  the  agreement  is  made  ;  as  where  property  is 
sold  and  delivered,  and  payment  therefor  is  made  on  the  spot ; 
or  where  A  agrees  to  exchange  horses  with  B,  and  they  make 
the  exchange  immediately. 

A  contract  is  executory  when  some  future  act  or  thing  is  to  be 
done,  and  while  it  is  unperformed  on  the  part  of  one  or  of  both 
of  the  parties.  If  A  and  B  agree  to  exchange  horses  next  week, 
and  it  is  agreed  to  postpone  the  exchange  or  delivery  until  that 
time,  the  contract  is  an  executory  one.  So  of  an  agreement  to 
build  a  house  in  a  year,  or  to  do  some  other  act  on  or  before 
some  future  day. 

A  contract  may  be  executed  as  to  one  of  the  parties,  while  it 
is  executory  as  to  the  other  ;  as,  for  instance,  where  one  pur- 
chases goods  which  are  delivered  at  the  time  of  the  sale,  but  the 
time  for  payment  is  postponed  ;  or  where  the  wages  for  specified 
work  are  paid  before  the  work  is  done. 


GENERAL  PRINCIPLES  OF  CONTRACTS.  75 

A  right  of  action  may  be  founded  upon  an  executory  con- 
tract, if  the  party  bound  neglects  or  refuses  to  perform  the  agree- 
ment, unless  there  is  some  legal  excuse  for  such  neglect  or 
refusal.  So  a  right  of  action  may  be  founded  upon  an  executed 
contract ;  as,  for  instance,  in  the  case  of  a  sale  or  an  exchange 
of  property,  which  is  delivered ;  for  if  there  was  a  warranty 
made  which  has  been  broken,  or  a  fraud  committed,  on  such  sale 
or  exchange,  the  party  injured  has  a  remedy  by  action. 

Although  it  may  appear  to  be  an  easy  matter  to  determine 
whether  a  given  contract  i§  an  executed  or  executory  one,  it  will 
be  found  that  some  very  difficult  questions  have  arisen  upon  this 
point,  especially  in  relation  to  contracts  of  sale,  under  which 
title  the  subject  will  be  fully  discussed.' 

§  6.  Of  entire  and  divisible  contracts.  A  contract  may  be 
entire,  or  it  may  be  divisible.  An  entire  contract  is  one  the  con- 
sideration of  which  is  entire  on  both  sides.  A  full  performance 
of  the  contract  by  either  of  the  parties,  in  the  absence  of  any 
agreement  to  the  contrary,  or  of  any  waiver  thereof,  is  a  condi- 
tion precedent  to  a  compulsion  of  the  fulfillment  of  any  part  of 
the  contract  by  the  other  party.  The  cases  in  which  this  rule 
has  been  applied  and  enforced  are  very  numerous.  A  contract 
for  the  sale  and  delivery  of  a  specified  quantity  of  personal  prop- 
erty at  an  agreed  price,  and  time  of  payment,  requires  a  full  per- 
formance by  the  delivery  or  tender  of  the  entire  quantity  to  the 
purchaser.  So,  an  agreement  to  work  for  a  specified  length  of 
time  for  a  fixed  compensation,  will  not  be  performed  so  as  to 
entitle  the  laborer  to  recover  pay  for  any  part  of  the  work  until 
the  entire  work  is  done. 

In  all  such  cases,  in  which  there  is  an  express  contract  to  de- 
liver a  particular  quantity  of  property,  or  to  render  specified  ser- 
vices, before  the  payment  of  the  price  agreed,  there  must  be  a 
full  performance  before  payment  can  be  required  in  whole  or  in 
part ;  and  the  difficulty,  or  even  the  impossibility  of  the  perform- 
ance is,  in  general,  no  excuse  for  the  non-performance.  To  this 
rule  there  are  some  exceptions  which  will  be  noticed  in  their 
proper  place  and  connection.     See  "  Performance." 

In  the  case  of  sales  it  is  sometimes  difficult  to  determine 
whether  the  contract  is  entire  or  several,  as  may  happen  where 
several  difierent  articles  are  sold  at  one  time.  The  general  rule 
seems  to  be  that  upon  the  sale  of  different  articles  for  separate 
prices  at  the  same  time,  the  contract  is  several  as  to  each  article 
-sold,  unless  the  acts  of  the  parties,  or  the  nature  of  the  subject- 


76  GENERAL  PRINCIPLES  OF  CONTRACTS. 

matter,  renders  it  necessary  to  consider  the  wliole  sale  as  an  entire 
transaction. 

If  the  contract  is  regarded  as  entire,  neither  party  can  rescind 
it  in  part  and  enforce  it  in  part,  and,  on  the  other  hand,  each 
party  is  liable  for  the  entire  consideration  or  for  no  part  of  it. 

An  entire  contract  may  be  apportioned  if  the  parties  consent, 
whether  such  assent  be  express  or  implied ;  and,  in  such  case, 
the  excess  of  consideration  advanced  may  be  recovered  back. 
So  there  may  be  a  waiver  as  to  the  performance  at  the  time  speci- 
fied if  both  parties  so  agree,  or  if  the  party  entitled  to  demand 
performance  consents  to  waive  it.  Where  the  non-performance 
of  a  contract  is  caused  by  the  party  who  is  entitled  to  claim  it, 
he  will  be  regarded  as  agreeing  to  treat  the  contract  as  divisible, 
and  the  other  party  may  recover  for  so  much  of  the  contract  as 
he  has  performed. 

§  7.  Of  contracts  absolute  or  conditional.  Contracts  may  be 
conditional,  or  may  be  absolute.  An  absolute  contract  is  merely 
an  agreement  to  do  or  not  to  do  a  specified  act  or  thing,  in  any 
or  all  events.  A  conditional  contract  is  an  executory  one,  and 
its  performance  depends  upon  a  condition.  It  differs  from  a 
mere  executory  contract,  since  that  may  be  an  absolute  agree- 
ment to  do  or  to  omit  the  doing  of  some  act  or  thing  ;  while  a 
conditional  agreement  is  one  whose  very  existence  and  perform- 
ance depend  upon  a  contingency  and  a  condition. 

Conditions  may  be  either  precedent  or  subsequent.  A  condi- 
tion precedent  is  one  which  must  happen  before  either  party 
becomes  bound  by  the  contract.  A  condition  subsequent  is  one 
which  follows  the  performance  of  the  contract,  and  operates  to 
defeat  and  annul  it,  upon  the  subsequent  failure  "of  either  party 
to  comply  with  the  condition.  A  condition  may  be  of  such  a 
nature  that  its  operation  may  be  either  precedent  or  subsequent. 
If  no  time  is  fixed  by  the  contract  for  the  performance  of  a  con- 
dition, the  rule  is,  that  it  must  be  performed  within  a  reasonable 
time.     See  Non-performance,  etc. 

§  8.  Of  joint  and  several  contracts.  Contracts  may  be  joint 
and  several,  or  they  may  be  joint  or  several.  Where  an  obliga- 
tion is  undertaken  by  two  or  more  persons,  or  a  right  is  given  to 
two  or  more,  the  general  legal  presumption  is  that  it  is  a  joint 
obligation,  or  a  joint  right,  as  the  case  may  require.  Where  the 
subject-matter  of  the  contract  is  entire,  as  where  the  contract  is 
to  pay  an  entire  sum  to  several  persons,  it  is  solely  a  joint  con- 
tract, and  no  one  of  the  persons  can  maintain  a  separate  action 


GENERAL  PRINCIPLES  OF  CONTRACTS.  77 

for  liis  share.  If,  however,  the  contract  be  to  pay  to  each  person 
a  specific  sum,  or  to  perform  distinct  and  separate  duties  to  each, 
the  contract  may  be  considered  as  several. 

In  the  absence  of  a  written  contract,  and  where  the  agreement 
is  one  of  implication  from  the  subject-matter  and  the  circum- 
stances of  the  case,  the  nature  of  the  consideration  will  furnish 
a  good  criterion  by  which  to  determine  whether  the  contract  is 
joint  or  several.  If  the  consideration  is  entire  and  single, 
although  it  moves  from  several  persons  jointly,  the  construction 
will  be  joint.  While  on  the  other  hand,  if  there  are  several  dis- 
tinct considerations  moving  from  each  of  the  persons  individu- 
ally, the  contract  will  be  several. 

ARTICLE  IIL 

OF  THE   PAETIES   TO   CON'TRACTS. 

Section  1.  Of  contracts  made  in  person.  It  is  a  general  rule  of 
law  that  all  persons  may  be  parties  to  a  contract,  unless  they  are 
incompetent  by  reason  of  a  personal  disability,  or  from  consid- . 
erations  of  public  policy. 

In  every  contract  there  must,  of  necessity,  be  at  least  two  par- 
ties ;  one  who  is  bound  to  perform  the  contract,  and  the  other 
who  is  entitled  to  have  it  performed. 

A  very  large  proportion  of  the  contracts  which  are  made,  are 
executed  by  the  parties  in  person.  But,  when  this  is  not  the 
case,  and  the  contract  is  made  by  an  agent,  the  law  still  treats 
it  as  the  act  and  contract  of  the  principal,  who  is  entitled  to  the 
advantages,  as  well  as  bound  by  the  liabilities  imposed  by  such, 
contract. 

In  those  cases  in  which  one  or  both  of  the  parties  are  not 
natural  persons,  but  are  legal  bodies  or  parties,  such  as  corpora- 
tions, joint-stock  companies,  and  the  like,  the  act  of  executing 
the  contract  must  be  that  of  an  officer  or  agent  of  the  corpora- 
tion or  company  ;  and  in  this  case,  as  in  that  of  a  natural  per- 
son acting  by  an  agent,  it  will  be  the  contract  of  the  principal. 

§  2.  Of  contracts  by  agents.  When  a  person  who  is  competent 
to  do  an  act  himself,  employs  another  to  do  it,  the  employer  is 
called  the  principal,  the  person  employed  is  called  an  agent,  and 
the  relation  between  the  parties  is  termed  an  agency.  Whatever  a 
person  may  lawfully  do  in  his  own  right,  he  may,  generally,  do  by 
an  agent ;  and,  therefore,  every  person  may  be  a  principal,  if  of 
full  age,  if  not  legally  or  actually  disabled.    There  are  few  persons 


78  GENERAL  PRINCIPLES  OF  CONTRACTS. 

who  are  excluded  from  acting  as  agents,  or  from  exercising  an 
authority  delegated  to  them  by  others ;  and,  therefore,  it  is  not 
necessary  for  a  person  to  be  able  to  act  in  his  own  right  in  order 
to  enable  him  to  act  for  others.  And  any  person  may  be  an 
agent,  if  he  is  not  actually  disabled  by  weakness  of  mind,  or 
want  of  understanding.  Legal  disability  to  enter  into  a  contract 
will  not  incapacitate  a  person  from  becoming  or  acting  as  an 
agent.  Thus,  for  example,  infants,  married  women,  persons 
attainted  or  outlawed,  slaves,  or  aliens,  may  be  agents  for  others. 
The  form  of  executing  an  agent' s  authority  will  be  hereafter 
explained.     See  Agency. 

§  3,  Of  contracts  by  partners.  In  relation  to  contracts  made 
by  a  partnership,  the  general  rule  is  that  the  act  or  contract  of 
one  partner  with  reference  to,  and  in  the  ordinary  course  and 
management  of  the  partnership  business  and  affairs,  is,  in  point 
of  law,  the  act  or  contract  of  the  whole  firm,  and  binding  on 
them,  even  though  it  violates  some  private  arrangement  between 
the  partners.  The  nature  of  the  partnership,  and  the  rights, 
powers,  and  duties  will  be  hereafter  discussed.    See  Partnership. 

§  4.  Of  contracts  by  executors  and  administrators.  It  is  a  gen- 
eral rule  that  a  personal  representative  is  not  liable  in  that  char- 
acter, upon  the  contract  of  his  testator,  except  to  the  extent  of 
the  assets  come  to  his  hands,  which  are  applicable  to  the  pay- 
ment, in  a  due  course  of  administration,  of  the  debt  sought  to  be 
recovered.  The  cases  in  which  an  executor  or  administrator  will 
become  personally  liable  to  pay  the  testator's  debts,  and  the 
instances  in  which  their  contracts  will  bind  the  estate  will  be 
further  explained  elsewhere.     See  Executors,  etc. 

§  5.  Of  contracts  by  trustees.  A  trustee  is  bound  to  perform 
all  those  acts  which  are  necessary  for  the  proper  execution  of  his 
trust.  He  must  preserve  the  trust  property  with  the  same  care 
as  though  it  were  his  own.  But  if  it  be  lost,  destroyed,  or  stolen, 
he  will  not  be  responsible,  unless  the  loss  occurs  through  the 
want  of  ordinary  tare  and  diligence.  He  is  not,  ordinarily,  per- 
mitted to  accept  the  bounty,  nor  to  purchase  the  trust  property 
from  the  cestui  que  trusty  although  there  are  exceptions  to  this 
general  rule,  where  such  sale  is  open,  and  made  in  entire  good 
faith.  He  ought  to  keep  the  funds  in  his  hands  safely  invested, 
and  he  may  make  such  contracts  as  are  necessary  to  accomplish 
that  purpose.  Such  funds  ought  to  be  secured  on  real  estate, 
and  not  upon  the  personal  credit  of  the  debtor.  For  the  general 
rights  and  duties  of  a  trustee,  see  Trustee. 


GENERAL  PRINCIPLES  OF  CONTRACTS.  79 

§  6.  Of  guardian  and  ward.  The  general  rules  of  law  that 
apply  to  trustees  govern  the  relation  of  guardian  and  ward.  The 
guardian  is  a  mere  trustee  in  respect  to  the  management  of  the 
ward's  property.  He  may  lease,  but  cannot  sell  the  ward's 
lands.  He  cannot  apply  or  employ  the  property  of  the  ward  to 
his  own  use  or  profit.  And,  generally,  it  may  be  said  that  all 
his  acts  relating  to  his  ward's  property  are  acts  of  agency,  for 
which  he  is  bound  to  account,  and  when  he  has  committed  waste, 
or  been  guilty  of  willful  misconduct,  or  been  wanting  in  ordinary 
diligence,  he  will  be  responsible  for  any  resulting  loss  to  his 
ward.     See  Guardian  and  Ward. 

§  7.  Of  contracts  by  or  ivitli  corporations.  A  corporation 
aggregate  is  regarded  in  law  as  a  person,  and  as  having  all  the 
powers  of  a  natural  person  in  making  or  enforcing  contracts.  As 
a  corporation  is  an  artificial  or  legal  person,  as  distinguished 
from  a  natural  person,. it  follows  that  its  acts  must  be  performed 
by  its  officers  or  agents.  As  the  rights,  duties,  and  powers  of 
corporations  will  be  elsewhere  treated,  it  will  be  sufficient  to 
refer  to  the  title  Corporations. 

§8.  Of  joint-stock  companies.  The  important  part  which  these 
companies  take  in  the  business  of  the  country  requires  a  more 
extended  discussion  than  can  be  here  given.  See  Joint-Stock 
Companies. 

§  9.  Of  contracts  by  auctioneers.  An  auctioneer  is  a  person 
who  is  authorized  to  sell  goods  or  merchandise  at  public  auction 
or  sale  for  a  compensation,  usually  termed  a  commission. 
His  rights  and  duties  differ  from  those  of  a  broker  in  two 
respects  ;  for,  in  the  first  place,  he  cannot,  as  auctioneer,  buy, 
either  for  himself,  or  for  another  person,  the  things  he  sells  as 
auctioneer ;  and,  in  the  second  place,  he  cannot  sell  at  private 
sale.  An  auctioneer  is  the  agent  of  the  seller  of  the  goods  until 
the  sale  is  effiacted,  and  then,  for  some  purposes,  he  becomes  the 
agent  of  .the  buyer,  so  that  in  some  respects  he  is  treated  as  the 
agent  of  both  parties.  By  knocking  down  the  goods  sold  to  the 
person  who  is  the  highest  bidder,  and  inserting  his  name  in  his 
book  or  memorandum,  as  such,  he  is  considered  as  the  agent  of 
both  parties;  and  the  memorandum  so  made  by  him  will 
bind  both  parties,  as  being  a  memorandum  sufficiently  signed 
by  an  agent  of  both  parties  within  the  statute  of  frauds.  See 
Auctioneer;  Agency. 

§  10.  Of  contracts  by  brokers.  A  broker  is  an  agent,  employed 
to  make  sales,  bargains  or  contracts  between  other  persons,  in 


80  GENERAL  PEINCIPLES  OF  CONTRACTS. 

trade,  commerce,  or  navigation  for  compensation  in  the  form  of 
a  commission,  commonly  called  brokerage.  He  is  a  mere  nego- 
tiator between  the  other  parties;  he  does  not  act  in  his  own  name, 
but  in  the  names  of  those  who  employ  him,  or  only  as  a  middle- 
man. In  buying  or  selling  goods,  he  is  not  intrusted  with  the 
custody  or  possession  of  them,  and  is  not  authorized  to  buy  or 
sell  them  in  his  own  name.  For  further  information,  see  Agency; 
Broker. 

§  11.  Of  contracts  by  factors.  Factors  and  brokers  are  both 
agents,  with  this  difference,  however:  the  factor  is  intrusted  with 
the  property,  which  is  the  subject  of  the  agency  ;  while  the 
broker  is  merely  employed  to  make  a  bargain  in  relation  to  it. 
The  compensation  of  a  factor  is  usually  a  commission,  and  he  is 
frequently  called  a  commission  merchant,  or  consignee;  while 
the  goods  received  by  him  for  sale  are  called  a  consignment.  A 
factor  differs  from  a  broker  in  these  respects;  a  factor  may  buy 
and  sell  in  his  own  name;  and  he  has  the  goods  or  merchandise 
in  respect  to  which  his  agency  is  created  in  his  possession,  while 
a  broker  cannot  buy  or  sell  in  his  own  name,  and  he  has  no 
possession  of  the  goods  sold. 

When  a  factor  undertakes  to  guarantee  to  his  principal  the 
payment  of  the  purchase-money  or  price  of  the  goods  sold  by 
him,  he  is,  on  account  of  the  risk  he  assumes,  entitled  to  an 
additional  compensation,  which  is  called  a  del  credere  commis- 
sion.    See  further,  Factors;  Agency. 

§  12.  Of  contracts  by  shipmasters.  A  master  of  a  ship  has, 
by  the  policy  of  the  law-merchant,  some  authority  not  usually 
implied  in  other  cases  of  a  general  agency.  So  long  as  his 
agency  lasts,  the  master  of  a  ship  has  a  general  authority,  grow- 
ing out  of  his  official  relation  to  the  ship,  to  make  all  contracts 
incidental  to  her  ordinary  employment.  Thus,  he  may  hire  sea- 
men for  the  voyage;  he  may,  in  some  cases,  if  the  exigencies 
and  necessities  of  the  case  require  it,  borrow  money,  and  pledge 
the  ship  for  its  repayment;  he  may  let  the  ship  on  a  charter- 
party,  or  take  shipments  on  freight  if  such  be  her  usual  employ- 
ment, but  not  otherwise;  and  in  some  extreme  cases  he  may  sell 
the  ship  and  cargo.     See  Navigation;  Ships  and  Shipping. 

§  13.  Of  the  change  of  parties  by  novation  or  substitution.  The 
term  "novation,"  which  is  borrowed  from  the  civil  law,  signi- 
fies the  substitution,  with  the  agreement  of  all  parties  concerned, 
of  one  debt  for  another,  or  of  one  party  for  another.  It  has  also 
been  defined  thus:  a  transaction  whereby  a  debtor  is  discharged 


GENERAL  PRINCIPLES  OF  CONTRACTS.  81 

from  his  liability  to  his  original  creditor,  by  contracting  a  new- 
obligation  in  favor  of  a  new  creditor,  by  the  order  of  his  original 
creditor.  Thus,  "  if  A.  owes  B.  $100,  and  B.  owes  C.  $100,  and 
the  three  meet,  and  it  is  agreed  between  them  that  A.  should  pay 
C.  the  $100,  B.'s  debt  is  extinguished,  and  C.  may  recover  that 
sum  against  A."  Tatlock  v.  Harris,  3  Term  R.  180;  Blunt  v. 
Boyd,  3  Barb.  209 ;  Karr  v.  Porter,  4  Houst.  (Del.)  236. 

The  contract  of  novation  somewhat  resembles  an  executed 
assignment  of  a  debt,  with  the  consent  of  the  debtor;  but  to 
avoid  the  effect  of  the  legal  rule  that  a  chose  in  action  is  not 
assignable  so  as  to  give  the  assignee  a  right  of  action  in  his  own 
name,  it  is  treated  as  a  new  contract,  of  which  the  consideration 
is  the  convenience  which  results  from  the  substitution  of  new 
parties. 

To  constitute  a  strict  novation  according-  to  the  civil  law,  it  is 
necessary  that  there  should  be  an  express  assent  of  all  parties, 
an  express  promise  and  acceptance  between  the  new  parties,  and 
an  entire  relinquishment  of  all  claim  on,  or  responsibility  to  the 
original  creditor.     See  Assignment. 

§  14.  Of  the  change  of  parties  Iby  assignment.  Any  right 
under  a  contract,  either  express  or  implied,  which  has  not  been 
reduced  io  possession,  is  a  chose  in  action  ;  and  is  so  called  be- 
cause it  can  be  enforced  against  an  adverse  or  unwilling  party 
only  by  an  action  at  law.  The  old  common  law  prohibited  the 
assignment  of  choses  in  action  on  the  ground  that  by  such  trans- 
fers litigation  would  be  encouraged  and  suits  multiplied.  An- 
other reason  w^as,  that  no  debtor  should  have  a  new  creditor 
substituted  for  the  original  one,  without  his  consent,  since  he 
might  have  substantial  reasons  for  his  choice  of  creditors.  Under 
the  old  law,  if  a  chose  in  action  was  assigned,  and  an  action 
was  brought  in  a  court  of  law,  the  action  must  have  been  brought 
in  the  name  of  the  assignor  for  the  benefit  of  the  assignee,  unless 
the  chose  in  action  was  a  negotiable  instrument  properly  trans- 
ferred, or  the  debtor  had  expressly  promised,  after  the  assign- 
ment, to  pay  the  debt  to  the  assignee. 

In  courts  of  equity  the  technical  common-  law  rule  was  disre- 
garded, and  where  there  was  a  honafide  assignment  of  a  chose  in 
action,  for  a  valuable  consideration,  the  assignee  was  permitted 
to  maintain  an  action  in  his  owu  name  without  any  assent  or 
promise  upon  the  part  of  the  debtor.  In  many  of  the  States  the 
old  rules  as  to  parties  to  actions  have  been  abrogated  or  modi- 
fied,  so  that  at  the   present  time  it  is  a  rule  very  generally 

Vol.  L  — 11 


82  GENERAL  PRINCIPLES  OF  CONTRACTS. 

observed  that  an  action  brought  upon  any  chose  in  action  ought 
to  be  prosecuted  in  the  name  of  the  real  party  in  interest.  The 
form,  mode  and  effect  of  an  assignment  of  property  or  of  choses 
in  action  will  form  the  subject  of  a  subsequent  chapter.  See 
Assignments. 

ARTICLE  lY. 

OF   THE   ASSEN"!   OF   THE   PAKTIES   TO   A    CONTKACT. 

Section  1.  Of  the  capacity  to  assent.  The  law  does  not  regard 
a  contract  as  valid  and  binding  unless  it  is  founded  upon  an 
intelligent  understanding  of  its  terms,  and  a  mutual  assent  of  the 
parties  ;  and,  whenever  there  is  such  a  mental  infirmity  of  either, 
or  of  both  of  the  parties,  as  to  render  it  impossible  for  them,  or 
either  of  them,  to  justly  understand  or  comprehend  its  terms,  or 
the  nature  and  effect  of  the  assent  given,  the  contract  will  be  in- 
valid and  cannot  be  enforced.  No  person  can  properly  be  said 
to  assent  that  he  will  be  bound,  unless  he  is  endowed  with  such 
a  degree  of  reason  and  judgment  as  will  enable  him  to  compre- 
hend the  subject  of  negotiation  ;  and,  hence  it  is,  that  the  assent 
which  is  requisite  to  give  validity  to  a  contract,  necessarily  pre- 
supposes a  free,  fair,  and  serious  exercise  of  the  reasoning 
faculty;  or,  in  other  words,  the  power,  both  physical  and  moral, 
of  deliberating  upon  and  weighing  the  consequences  of  the 
engagement  about  to  be  entered  into.  If,  therefore,  either  of  the 
parties  to  an  agreement  is  absolutely  deprived  of  the  use  of  his 
understanding  ;  or  if  he  is  deemed  by  law  not  to  have  attained 
to  it,  there  can  is  such  a  case  be  no  mutual  agreement,  and,  con- 
sequently, no  contract  which  will  bind  him.  FitzliugTi  v.  Wil- 
cox^ 12  Barb.  255 ;  Wadsworth  v.  Sherman,  14  id.  169 ;  Matter 
of  Beckwith,  6  N.  Y.  S.  C.  (T.  &  C.)  13 ;  3  Hun,  443. 

The  rule  of  law,  therefore,  which  requires  the  assent  of  the 
parties  to  a  contract,  assumes  that  such  assenting  parties  shall 
be  cowjpetent  to  contract ;  and,  accordingly,  in  order  to  there 
being  a  valid  contract,  a  capacity  to  contract  is  absolutely  neces- 
sary. 

But  the  law  presumes  that  all  persons  possess  this  capacity  to 
contract ;  and,  where  exemption  from  liability  to  perform  a  con- 
tract is  claimed  on  account  of  such  want  of  capacity,  this  fact 
must  be  clearly  established  by  the  person  who  claims  the  exemp- 
tion. And,  besides  this,  it  is  only  in  particular  cases  that  this 
kind  of  protection  can  be  claimed ;  and,  therefore,  weakness  of 
mind  short  of  insanity;  or  immaturity  of  reason  in  one  who  has 


GENERAL  PRINCIPLES  OF  CONTRACTS.  83 

attained  full  age  ;  or  the  mere  absence  of  experience  or  skill 
upon  the  subject  of  the  particular  contract  does  not,  of  itself, 
aflford  any  ground  of  relief  either  at  law  or  in  equity. 

In  some  cases  the  incompetency  to  contract  is  general  and  abso- 
lute ;  in  others  it  is  limited  ;  in  some  cases  again  the  contract  is 
void  as  against  both  the  parties  ;  in  others,  only  the  incompetent 
or  protected  party  can  protect  himself  from  liability  upon  it. 

It  will  not  be  necessary  to  discuss,  in  this  place,  the  law  in 
relation  to  the  incompetency  of  particular  persons,  or  as  to  the 
validity  of  contracts  made  under  duress.  In  the  subsequent 
pages  of  this  work  will  be  found  a  full  discussion  of  these  sub- 
jects. 

See  titles  like  the  following :  Lunatics,  Insanity,  Idiots, 
Drunkards,  Intoxication,  Aliens,  Infancy,  Infants,  Coverture, 
Married  Women,  Seamen,  Bankrupts,  Duress. 

ARTICLE  y. 

WHAT  CONSTITUTES  A  VALID  ASSENT  TO  A  CONTRACT. 

Section  1.  Of  assent.  In  generaL  To  constitute  a  binding  con- 
tract the  legal  assent  of  the  parties  is  absolutely  indispensable  ; 
and  there  are  three  requisites  to  such  an  assent ;  it  should  be 
mutual ;  it  should  be  without  restraint ;  it  should  be  understand- 
ingly  made,  and  without  error  or  mistake.  To  create  a  contract 
it  is  essential  that  there  should  be  a  reciprocal  assent  to  a  certain 
and  definite  proposition ;  and  the  parties  must  assent  to  the  same 
thing  in  the  same  sense.  Suydam  v.  Clark,  2  Sandf.  133  ;  Jenness 
V.  Mount  Hope  Iron  Co.,  53  Me.  20,  23  ;  Hartford  &  New  Haven 
R.  R.  Co.  V.  Jackson,  24  Conn.  514. 

A  mere  proposal  or  offer  which  is  not  assented  to  does  not  con- 
stitute a  contract,  for  there  must  be  not  only  a  proposal,  but  an 
acceptance  of  it,  before  there  is  a  complete  contract.  White  v. 
Corlies,  46  N.  Y.  (1  Sick.)  467 ;  Stitt  v.  Huidekopers,  17  Wall. 
384,  396  ;  Washington  Ice  Co.  v.  Webster,  62  Me.  341,  360. 

Where  a  proposition  is  made  which  is  not  accepted,  but  a 
modified  acceptance  is  proposed,  there  is  no  contract  unless  the 
modified  proposition  is  accepted  by  the  party  who  made  the  first 
proposal.  Jenness  v.  Mount  Hope  Iron  Co.,  53  Me.  20, 23  ;  John- 
son V.  Appleby,  L.  R.,  9  C.  P.  158  ;  43  L.  J.  C.  P.  146;  22  W.  R 
515  ;  Myers  v.  Smith,  48  Barb.  614  ;  Hutcheson  v.  Blakeman,  3 
Mete.  (Ky.)  80;  Baker  y.  Johnson  Co.,  37  Iowa,  186;  Honeyman 
V.  Marryatt,  6  H.  L.  Cas.  112 ;  S.  C,  21  Beav.  14. 


84  GENERAL  PRINCIPLES  OF  CONTRACTS. 

A  proposal  by  one  party  which  is  not  accepted  or  assented  to 
by  the  other,  is  not  binding  upon  either  ;  and,  at  any  time  before 
acceptance,  it  may  be  retracted.  Stitt  v.  HuideTcopers,  17  Wall. 
384,  396  ;  Chicago  &  Great  Eastern  E.  B.  Co.  v.  Dane,  43  N.  Y. 
(4  Hand)  240  ;  Crocker  v.  New  London,  WilUmantic  &  Palmer 
R.  R.  Co.,  24  Conn.  261. 

The  validity  of  an  agreement  depends  upon  the  fact  that  the 
parties  thereto  give  their  free  and  full  assent  to  all  its  terms ; 
and,  if  there  be  any  misunderstanding  as  to  any  material  portion 
of  it,  there  will  not  be  any  contract.  But,  this  is  to  be  under- 
stood, however,  in  relation  to  the  fact  that  the  parties  know  what 
facts  or  stipulations  they  are  agreeing  to,  and  not  that  they  fully 
comprehend  the  effect  or  legal  liabilities  of  their  engagements. 

Where  assent  to  an  agreement  is  procured  by  fraud,  the  con- 
tract will  be  void  at  the  election  of  the  party  deceived.  See 
Fraud,  as  a  defense. 

§  2.  Assent  how  affected  by  a  mistake  as  to  the  law.  It  is  a 
legal  presumption  that  every  person  knows  the  law,  when  he 
knows  the  facts ;  yet  this  presumption,  though  arbitrary,  and 
in  most  cases  untrue  in  fact,  is  founded  upon  principles  of 
public  policy  ;  for  without  some  settled  rule  which  imposes  upon 
every  person  the  duty  of  well  considering  and  understanding 
the  consequences  of  his  own  acts  and  contracts,  there  would  be 
no  limit  to  the  excuse  of  ignorance,  and  no  security  in  any  agree- 
ment. 

Again,  the  opposite  rule  would  encourage  ignorance,  and  rob 
knowledge  and  sagacity  of  its  fair  fruits  ;  for,  if  a  party  could 
claim  to  set  aside  his  contract  on  the  ground  that  he  was  not 
acquainted  with  the  legal  rules  governing  it,  it  would  be  more 
safe  to  be  ignorant  than  to  be  wise.  It  is  a  legal  presumption, 
therefore,  that  every  man  who  makes  a  contract  makes  it  advis- 
edly, and  with  a  knowledge  of  its  legal  incidents  and  consequences; 
and,  although  this  rule,  like  all  arbitrary  rules,  works  injury 
and  injustice  in  some  individual  cases,  yet  it  cuts  a  knot  which 
cannot  be  untied  by  the  law,  and  serves  to  give  stability  and 
certainty  to  the  general  transactions  of  commerce,  which  would 
otherwise  be  fluctuating  and  insecure.  Whatever  mistakes, 
therefore,  a  person  may  make  as  to  the  law  relating  to  his  con- 
tracts, they  will  be  binding,  Tinless  some  fraud  or  imposition  has 
been  practiced  upon  him.  Fellows  v.  Hermans,  4  Lans.  230, 243, 
244  ;  Lanning  v.  Carpenter,  48  N.  Y.  (3  Sick.)  408, 413 ;  Wheaton 
V.  Wieaton,  9  Conn.  96 ;  PinTcham  v.  Gear,  3  N.  H.  163 ;  Hub- 


GENERAL  PRINCIPLES  OF  CONTRACTS.  85 

hard  v.  Martin,  8  Yerg.  498 ;  Jones  v.  Wat  kins,  1  Stew.  (Ala.^ 
81 ;  Jacobs  v.  Morange,  47  N.  Y.  (2  Sick.)  57. 

There  are  cases  whicli  maintain  a  contrary  doctrine.  Lawrence 
V.  Beaubien,  2  Bailey  (S.Car.),  623 ;  Underwood  v.  Brockmun,  4 
Dana  (Ky.),  309. 

A  person  is  not  presumed  to  know  tlie  laws  of  a  foreign 
country,  and  ignorance  or  mistake  as  to  them  is  treated  as  a  mis- 
take of  fact,  and  not  of  law.  In  this  respect,  the  laws  of  each  of 
the  different  States  of  the  Union  are  considered  foreign  laws. 
Haven  v.  Foster,  9  Pick.  112, 130 ;  Norton  v.  Marden,  16  Me.  45; 
Holmes  v.  Broughton,  10  Wend.  75. 

§  3.  Assent  how  affected  by  mistake  of  fact.  Where  a  contract 
is  made  in  ignorance  of  a  material  fact,  or  under  a  plain  and  in- 
jurious mistake  in  relation  to  it,  such  contract  is  voidable  at  the 
election  of  the  person  so  in  error.  This  rule  is  not  confined  to 
those  cases  in  which  there  has  been  a  fraudulent  concealment  or 
suppression  of  facts  by  the  opposite  party,  but  extends  to  cases 
of  innocent  misapprehension  and  mistake.  Roberts  v.  Fisher, 
43  N.  Y.  (4  Hand)  159  ;  Leger  v.  Bonnaffe,  2  Barb.  475  ;  6  N.  Y. 
Leg.  Obs.  235. 

Every  person  of  reasonable  understanding  is  presumed  to 
know  the  law,  and  to  act  upon  the  rights  which  it  confers  or 
supports,  when  he  knows  all  the  facts ;  and,  it  is  culpable  neg- 
ligence in  him  to  do  an  act,  or  to  make  a  contract,  and  then  set 
up  his  ignorance  of  law  as  a  defense.  But  there  is  no  presump- 
tion that  any  person  is  acquainted  with  all  matters  of  fact,because 
it  is  not  possible  by  any  degree  of  diligence  to  acquii-e  that 
knowledge  in  all  cases,  and  for  that  reason,  an  ignorance  of  facts 
does  not  import  culpable  negligence. 

The  instances  in  which  contracts  may  be  avoided  on  the  ground 
of  ignorance  or  mistake  as  to  material  facts  are  very  numerous, 
and  in  the  other  portions  of  this  work  some  of  them  will  be 
noticed.  See  Assumpsit ;  Money  Paid  ;  Mistake ;  Rescission ; 
Reformation,  and  similar  titles. 

§  4.  Of  assent  obtained  by  duress.  The  assent  to  every  valid 
contract  is  such  as  is  given  freely  and  voluntarily  ;  and,  there- 
fore, an  assent  which  is  procured  by  compulsion  or  duress  will 
not  create  a  binding  contract. 

Duress  may  be  either  imprisonment  or  by  threats,  and  it  usu- 
ally relates  to  the  person  whose  assent  is  desired,  or  nominally 
obtained. 

And,  in  this  country,  it  has  been  held  that  duress  of  a  person's 


86  GENERAL  PRINCIPLES  OF  CONTRACTS. 

goods  is  suflBcient  to  avoid  a  contract  obtained  from  him  in  that 
manner. 

This  subject  is  elsewhere  fully  discussed.     See  Duress. 

§  5.  Of  assent  given,  or  contracts  made  hy  letters.  A  proposal 
for  a  contract  may  be  made  in  person,  by  agent,  by  telegraph,  or 
by  letter  ;  and  an  assent  to  it  may  be  given  in  the  same  manner. 

If  the  proposition  is  made  by  letter,  and  is  sent  by  mail,  the 
person  making  the  offer  may  retract  by  a  subsequent  letter  which 
reaches  the  opposite  party  at  any  time  before  an  answer  of  accept- 
ance has  been  written  and  put  in  the  mail.  But,  as  soon  as  such 
answer  is  put  into  the  mail,  the  contract  is  closed  as  to  both 
parties.  Wheat  v.  Cross,  31  Md.  99 ;  S.  C,  1  Am.  Rep.  28 ; 
Mactier  v.  Frith,  6  Wend.  103  ;  Vassar  v.  Camp,  11  N.  Y.  (1 
Kern.)  441  ;  Abhott  v.  Shepard,  48  N.  H.  14 ;  Hutcheson  v.  Blake- 
man,  3  Mete.  (Ky.)  80 ;  Hamilton  v.  Lycoming  Ins.  Co.,  5 
Penn.  St.  339;  Potts  y.  Whitehead,  5  C.  E.  Green  (N.  J.),  55; 
Moore  v.  Pier  son,  6  Iowa,  279. 

Although  a  letter  retracting  an  offer  made  has  been  mailed, 
and  is  in  due  course  of  transmission,  at  the  time  when  the  letter 
of  assent  was  mailed,  the  contract  will  be  closed,  because  the 
retraction  will  be  of  no  avail  unless  received  before  the  acceptance 
was  mailed.  lb.     Sanford  v.  Howard,  29  Ala.  684. 

An  acceptance  by  letter  takes  effect  from  the  time  when  it  was 
mailed,  and  not  from  the  time  of  its  receipt  by  the  other  party, 
lb.  Levy  v.  Cohen,  4  Ga.  1  ;  Vassar  v.  Camp,  11  N.  Y.  (1  Kern.) 
441;  Tayloe  Y.  Merchants'  Fire  Ins.  Co.,  9  How.  (U.  S.)390; 
Dunlop  V.  Higgins,  1  H,  L.  Cas.  381  ;  Stoclcham  v.  Stoclcham, 
32  Md.  196. 

A  retraction  takes  effect  when  the  letter  of  retraction  is  re- 
ceived, and  not  from  the  time  of  mailing  it.  lb.. 

An  offer  or  proposition  made  by  letter,  and  not  replied  to  within 
a  reasonable  time,  is  not  a  contract.  Martin  v.  Black,  21  Ala. 
721 ;  Chicago  &  Great  Eastern  R.  R.  Co.  v.  Bane,  43  N.  Y.  (4 
Hand.)  240 ;  Bruner  v.  Wheaton,  46  Mo.  363. 

Where  a  letter  containing  a  proposal  or  an  acceptance  of  one, 
is  properly  mailed,  neither  party  will  be  injuriously  affected  by 
the  delays  of  the  mail,  or  by  the  total  miscarriage  of  the  letter. 
Vassar  v.  Camp,  11  N.  Y.  (1  Kern.)  441  ;  Tayloe  v.  Merchants* 
Fire  Ins.  Co.,  9  How.  (U.  S.)  390  ;  Dunlop  v.  Higgins,  1  H.  L. 
Cas.  381. 

Where  a  treaty  is  commenced  by  letter,  and  an  offer  by  letter 
is  verbally  rejected,   the  party  who  made  the  offer  is  relieved 


GENERAL  PRINCIPLES  OF  CONTRACTS.  87 

from  his  liability,  unless  lie  consents  to  renew  the  treaty.  Shef- 
field Canal  Co.  v.  Sheffield  &  Rotherham  R.  R.  Co.,  3  Railw. 
Cas.  121.  Where  there  have  been  oral  negotiations  between 
two  parties,  which  did  not  result  in  a  completed  contract ;  and, 
afterward,  one  of  the  parties  writes  a  letter,  in  which  he  states 
his  understanding  of  the  terms  of  the  prior  negotiations,  and 
accepts  the  terms  thus  stated,  and  requires  an  acceptance  by  letter, 
this  does  not  constitute  a  contract,  but  is  a  mere  proposition  for 
a  contract.  Hough  v.  Brown,  19  N.  Y.  (5  Smith)  111.  See 
Washington  Ice  Co.  v.  Webster,  62  Me.  341. 

If,  by  the  terms  of  an  offer,  a  certain  time  be  prescribed,  within 
which  it  may  be  accepted  by  the  other  party,  it  must  be  accepted 
within  that  time ;  and  an  acceptance  after  the  time  will  not  con- 
stitute a  contract  that  will  bind  the  party  making  the  proposal. 
Potts  V.  Wlutehead,  5  C.  E.  Grreen  (N.  J.),  55 ;  Larmon  v.  Jordan, 
m  lU.  204. 

So,  too,  a  party  making  an  offer  may  require  that  the  accept- 
ance shall  be  made  in  a  particular  manner,  as,  for  instance,  that 
it  shall  be  completed  by  a  contract,  in  writing  ;  and  an  accept- 
ance in  any  other  manner  will  not  constity.te  a  contract.  Goi^- 
ernor.  Guardians,  etc.,  of  the  Poor  of  King ston-uy on- Hull  v. 
Petch,  10  Exch.  610  ;  S.  C,  28  Eng.  Law  &  Eq.  470. 

If  a  letter  is  addressed  to  the  owner  of  lands,  inquiring  whether 
he  is  the  owner  of  certain  lots,  and,  if  so,  the  price  of  them,  and 
an  answer  is  returned,  naming  a  price,  this  is  not  equivalent  to  a 
proposal  to  sell  the  lots,  for,  a  mere  statement  of  the  price  is  not 
an  offer  to  sell,  since  the  owner  may  wish  to  choose  a  purchaser 
and  may  not  be  willing  to  sell  to  any  one  who  offers  his  price. 
Knight  v.  Cooley,  34  Iowa,  218.  See,  also,  Spencer  v.  Harding, 
L.  R.,  5  C.  P.  561 ;  19  W.  R.  48  ;  39  L.  J.  C.  P.  332  ;  23  L.  T.  (N. 
S.)  237  ;  Tuclzer  v.  Woods,  12  Johns.  190. 

§  6.  Of  assent  given,  or  contracts  made,  by  telegraph.  The  tele- 
graph is  now  a  common  medium  of  communication  between 
parties  who  desire  to  enter  into  contracts.  And  most,  if  not  all, 
the  rules  relating  to  contracts  made  by  letters,  are  equally 
applicable  to  contracts  made  by  the  use  of  telegrams.  Where 
one  party  makes  an  offer,  in  the  first  instance,  by  a  telegram, 
which  is  accepted  by  the  other  party  through  the  same  medium, 
and  without  any  prior  agreement  or  dealing  between  them,  the 
contract  is  as  complete  and  as  valid  as  though  it  had  been  made 
by  letters  through  the  mails,  or  even  directly  by  the  parties  in 
person.    Telegrams  used  in  communicating  and  accepting  an 


88  GENERAL  PRINCIPLES  OF  CONTRACTS. 

offer,  will,  when  acted  upon,  form  a  contract  tliat  will  govern 
the  acts  of  the  parties  under  the  stipulations  of  the  telegrams. 
DiiUe  V.  Batts,  38  Texas,  312. 

A  valid  contract  may  be  made  when  the  offer  is  contained  in  a 
letter,  and  the  acceptance  is  made  by  a  telegram.  An  offer  was 
made  by  letter,  to  pay  a  specified  sum  as  the  rent  of  a  particular 
house  for  one  year,  and  added,  ' '  If  you  are  willing  and  will 
telegraph  at  once  to  that  effect,  I  will  take  it,"  to  which  the 
owner  replied  by  telegraph,  "you  may  have  the  store  for  one 
year  on  the  terms  of  your  letter,"  and  this  was  held  to  constitute 
a  valid  contract.  Prosser  v.  Henderson,  20  Upper  Canada,  Q.  B. 
Rep.  438 ;  Allen's  Tel.  Cas.  170 ;  see,  also,  CalJioun  v.  Atchison, 
4  Bush  (Ky.),  261. 

It  has  been  seen  that  the  mailing  of  a  letter  containing  an 
assent  to  the  terms  of  a  proposition  is  sufficient  to  complete  the 
contract,  ante,  86.  So,  where,  in  pursuance  of  a  previous  agree, 
ment  between  the  parties  to  use  the  telegraph  as  a  means  of  busi- 
ness communication,  a  telegram  containing  a  proposition  is  sent 
by  one  of  the  parties  to  the  other,  who  accepts  it  by  dispatching 
a  notice  that  it  is  accepted,  this  will  be  a  complete  contract  from 
the  time  when  the  acceptance  was  sent.  Trevo7'  v.  Wood,  36 
N.  Y.  (9  Tiff.)  307  ;  3  Abb.  (N.  S.)  355  ;  1  Trans.  App.  248. 

Parties  who  use  the  telegraph  as  a  mode  of  communication  are 
not  responsible  for,  nor  bound  by,  the  errors  of  the  operator  in 
transmitting  dispatches.  A  person  who  writes  a  message  order- 
ing a  specified  number  of  articles  is  not  bound  to  accept  a  larger 
number  merely  because  the  operator  transmitted  a  message, 
which,  taken  in  connection  with  a  previous  communication  by 
letter,  might  be  construed  as  an  order  for  such  larger  number. 
Henliel  v.  Pape,  L.  R.,  6  Exch.  7 ;  23  L.  T.  (N.  S.)  419  ;  19  W. 
R.  106  ;  Allen's  Tel.  Cas.  567. 

A  wrote  to  B,  asking  on  what  terms  he  could  execute  an  order 
for  fifty  rifles.  B  answered,  stating  his  terms.  Subsequently  B 
received  a  telegram  from  A  directing  him  to  send  "  the  "  rifles. 
He  accordingly  forwarded  fifty  rifles,  but  A  refused  to  accept 
more  than  three  of  them,  for  the  reason  that  the  message  deliv- 
ered by  him  to  the  telegraph  operator  ordered  but  tJiree  rifles, 
while  the  operator,  by  a  mistake  on  his  part,  telegraphed  the 
word  "the"  instead  of  "  three,"  and  it  was  held  that  A  was  lia- 
ble only  for  three  rifles.  lb. 

A  transmitted  from  Peterhead  a  telegram  to  B  at  Liverpool,  as 
follows  :  "  Send  on  immediately  fifteen  twenty  tons  salt  invoice 


GENERAL  PRINCIPLES  OF  CONTRACTS.  89 

in  my  name  cash  terms."  Through  the  fault  of  the  telegraph 
clerks  the  telegraph  delivered  to  B  read :  "  Send  on  rail  immedi- 
ately fifteen  twenty  tons  salt  Morice  in  morning  name  cash 
terms."  B  sent  salt  to  Peterhead,  addressed  "Morice,  Peter- 
head," and  forwarded  the  invoices  to  the  same  address.  The  in 
voices  were  returned,  and  A  refused  to  accept  a  delivery  of  the 
salt,  and  it  was  held  that  no  contract  had  been  completed  betw^een 
the  parties.  Verdin  v.  Robertson^  10  Court  of  Sessions  Cases 
(3d  series),  35  ;  Allen's  Tel.  Cas.  697. 

B  having  entered  into  a  contract  with  C,  the  brother  of  the  de- 
fendant, for  the  sale  of  hay,  brought  an  action  against  the 
defendant  for  not  accepting.  The  judge  at  the  trial  admitted 
letters  and  telegrams  signed  by  C,  as  evidence  against  the  defend- 
ant, and  the  jury  found  for  the  plaintiff ;  and  it  was  held  that 
there  was  sufficient  evidence  of  the  authority,  and  that  the  two 
telegrams,  of  which  one  was  signed  in  C's  name,  and  in  the  other 
the  name  of  the  defendant  was  not  mentioned  as  buyer,  together 
constituted  a  sufficient  memorandum  to  satisfy  the  Statute  of 
Frauds,  on  the  ground  that  the  defendant  might  be  treated  as 
the  undisclosed  principal  of  C,  who  appeared  on  the  telegrams 
to  be  liable  as  principal.  McBlaln  v.  Cross,  25  L.  T.  (N.  S.)  804, 
Q.  B.;  Allen's  Tel.  Cas.  691.  See  Trevor  v.  Wood,  86  N.  Y.  (9 
Tiff.)  807 ;  3  Abb.  (N.  S.)  355  ;  1  Trans.  App.  248 ;  Godwin  v.  Fran- 
cis, L.  R.,  5  C.  P.  295 ;  39  L.  J.  C.  P.  121 ;  22  L.  T.  (N.  S.)  338. 

Telegrams  signed  by  a  person  and  delating  to  a  contract,  but 
not  stating  its  terms  or  conditions,  are  not  sufficient  to  take  the 
contract  out  of  the  Statute  of  Frauds.  Hazard  v.  Day,  14 
Allen  (Mass.),  487 ;  Allen's  Tel.  Cas.  319.  See  Washington  Ice 
Co.  V.  Wehster,  62  Me.  341. 

Telegrams  are  competent  evidence  as  a  mode  or  means  of  prov- 
ing contracts.  Taylor  v.  Steamboat  Robert  Campbell,  20  Mo. 
254  ;  Beach  v.  Raritan  &  Delaware  Bay  R.  R.  Co.,  37  N.  Y.  (10 
Tiff.)  457  ;  5  Trans.  App.  113  ;  Heiikel  v.  Rape,  L.  R.,  6  Exch.  7; 
23  L.  T.  (N.  S.)  419  ;  19  W.  R.  106 ;  Allen's  Tel.  Cas.  567  ;  DurJcee 
V.  Vermont  Central  R.  R.  Co.,  29  Yt.  127. 

A  contract  made  by  telegram  must  be  proved  like  any  other 
contract,  by  the  best  evidence  the  case  admits  of,  which  is  the 
original  message,  if  that  is  to  be  found;  and  if  this  is  lost,  its  con- 
tents may  be  proved  by  secondary  evidence.  Durkee  v.  Vermont 
Central  R.  R.  Co.,  29  Yt.  127;  Allen's  Tel.  Cas.  69  ;  Williams  v. 
BricJcell,  37  Miss.  682  ;  Allen's  Tel.  Cas.  136. 

A  copy  of  a  telegram  is  not  admissible  as  evidence,  unless  it 

Vol.  L  — 12 


90  GENERAL  PRINCIPLES  OF  CONTRACTS. 

is  impossible  to  produce  the  original   message.     Matteson  v. 
Moyes,  25  111.  691  ;  Allen's  Tel.  Cas.  169. 

ARTICLE  YL 

OF  THE  CON"SIDERATION   OF  CONTEACTS. 

Section  1.  A  consideratiou  is  necessary.  An  agreement  or 
promise,  made  without  any  consideration  to  support  it,  is  entirely 
void  and  cannot  be  enforced.  In  the  case  of  a  contract  or  promise 
under  seal,  the  law  presumes  the  existence  of  a  sufficient  con- 
sideration. In  the  case  of  simple  contracts,  which  term  includes 
all  contracts  not  under  seal,  whether  oral  or  written,  a  sufficient 
consideration  must  not  only  exist  in  fact,  but  it  must  generally 
be  alleged  in  the  pleadings  and  proved  in  evidence  to  warrant  a 
recovery. 

Promissory  notes  and  bills  of  exchange  do  not  ordinarily  form 
any  exception  to  the  rule  that  a  consideration  is  necessary  to 
support  them,  for,  as  between  the  original  parties,  although 
there  is  a  presumption  that  a  sufficient  consideration  exists,  so 
that  it  is  unnecessary  for  the  plaintiff  to  prove  a  consideration 
in  the  first  instance,  yet  a  want,  a  failure  of,  or  an  illegality  of 
consideration  may  be  set  up  as  a  defense  ;  and  the  only  differ- 
ence between  the  case  of  a  bill  or  note  and  any  other  contract, 
as  to  the  immediate  parties,  is,  that  the  burden  of  proof  is 
changed.  Parish  v.  Stone,  14  Pick.  198,  201 ;  Jennison  v.  Staf- 
ford. 1  Cush.  (Mass.)  168,  169  ;  Sawyer  v.  Vaughn,  25  Me.  337, 
339  ;  Emery  v.  Estes,  31  id.  155. 

Although  a  consideration  is  indispensably  necessary  for  the 
support  of  a  simple  contract,  it  is  not  necessary  that  it  should 
be  expressed  in  the  contract,  even  though  it  be  a  written  con- 
tract, if  it  be  otherwise  duly  proved  to  exist.  Beeson  v.  Howard, 
44  Ind.  413;  Cummings  v.  Dennett,  26  Me.  397;  Arms  v. 
Ashley,  4  Pick.  71 ;  Tlngley  v.  Cutler,  7  Conn.  291 ;  Patchin  v. 
Swift,  21  Vt.  292;  Thompson  v.  Blanchard,  3  N.  Y.  (3  Comst.) 
335. 

If  a  written  contract  does  not  set  forth  the  specific  considera- 
tion upon  which  it  is  founded,  but  merely  states  in  general  terms 
that  it  was  made  upon  a  valuable  consideration,  this  is  prima 
facie  sufficient  evidence  of  that  fact.  Whitney  v.  Stearns,  16 
Me.  394 ;  Sloan  v.  Gibson,  4  Mo.  33. 

§  2.  Kinds  of  consideration.  "  Valuable  considerations  are 
divided  by  the  civilians  into  four  species :    1.  Do,  ut  des:  as 


GENERAL  PRINCIPLES  OF  CONTRACTS.  91 

when  I  give  money  or  goods,  on  a  contract  that  I  shall  be  repaid 
money  or  goods  for  them  again.  Of  this  kind  are  all  loans  of 
money  upon  bond,  or  promise  of  repayment;  and  all  sales  of 
goods,  in  which  either  there  is  an  expressed  contract  to  pay  so 
much  for  them,  or  else  the  law  implies  a  contract  to  pay  so  much 
as  they  are  worth.  2.  The  second  species  is,  facio,  ut  facias  : 
as,  when  I  agree  with  a  man  to  do  his  work  for  him,  if  he  will 
do  mine  for  me  ;  or  if  two  persons  agree  to  marry  together ;  or 
to  do  any  other  positive  acts  on  both  sides.  Or,  it  may  be  to 
forbear  on  one  side  in  consideration  of  something  done  on  the 
other  ;  as,  that  in  consideration  A,  the  tenant,  will  repair  his 
house,  B,  the  landlord,  will  not  sue  him  for  waste.  Or,  it  may  be 
for  mutual  forbearance  on  both  sides ;  as,  that  in  consideration 
that  A  will  not  trade  to  Lisbon,  B  will  not  trade  to  Marseilles;  so 
as  to  avoid  interfering  with  each  other,  3.  The  third  species  of 
consideration  is  faoio,  ut  des:  when  a  man  agrees  to  perform 
any  thing  for  a  price,  either  specifically  mentioned,  or  left  to  the 
determination  of  the  law  to  set  a  value  to  it.  And  when  a  ser- 
vant hires  himself  to  his  master  for  certain  wages  or  an  agreed 
sum  of  money ;  here  the  servant  contracts  to  do  his  master's  ser- 
vice, in  order  to  earn  that  specified  sum.  Otherwise,  if  he  be 
hired  generally;  for  then  he  is  under  an  implied  contract  to 
perform  the  service  for  what  it  shall  be  reasonably  worth.  4. 
The  fourth  species  is,  do,  ut  facias  :  which  is  the  direct  counter- 
part of  the  preceding.  As  when  I  agree  with  a  servant  to  give 
him  such  wages,  upon  his  performing  such  work ;  which,  we 
see,  is  nothing  else  but  the  last  species  inverted  ;  for  servus  facit, 
ut  herus  det,  and  lierus  dat,  and  ut  sertius  faciaV  2  Bla.  Com. 
44d;  3  Broom  &  Hadley's  Com.  158,  159;  or  vol.  2,  133,  top 
page,  Wait's  ed. 

In  the  subsequent  sections  of  this  article  the  various  kinds  of 
considerations  will  be  considered  as  fully  as  is  required  in  a 
work  like  the  present. 

§  3.  Benefit  or  injury  as  a  consideration.  A  consideration  may 
arise  from,  or  consist  of,  some  benefit  or  advantage  accruing  to 
the  party  who  promises ;  or,  it  may  arise  from  some  inconven- 
ience or  detriment  sustained  by  the  person  to  whom  the  promise 
is  made  ;  and,  whenever  any  injury  to  the  one  party,  or  any 
benefit  to  the  other  party  is  the  ground  of  consideration,  it  will 
be  sufficient  to  support  a  contract.  Tomplcins  v.  Philips,  12  Gra. 
52 ;  Doyle  v.  Knapp,  4  111.  334  ;  Warren  v.  Wliitney,  24  Me. 
661 ;  Ordineal  v.  Barry,  24  Miss.  9 ;  Laiorence  v.  Fox,  20  N.  Y, 


92  GENERAL  PRINCIPLES  OF  CONTRACTS. 

(6  Smith)  268  ;  Clark  v.  Sigourney,  17  Conn.  511 ;  Carr  v.  Card^ 

34  Mo.  513  ;  Powell  v.  Brown,  3  Johns.  100. 

It  is  not  necessary  that  there  should  be  a  concurrence  of  benefit 
to  one  party,  and  of  detriment  to  the  other,  to  constitute  a  valid 
consideration.  If  the  party  promising  receives  a  benefit  for  his 
promise,  that  is  sufficient,  although  the  other  party  suffers  no 
detriment.  So,  if  the  party  promised  suffers  any  detriment,  that 
is  sufficient,  although  the  party  promising  does  not  receive  any 
benefit.  But,  if  there  is  no  detriment  or  benefit  to  either  party, 
there  will  be  no  consideration.  A  few  of  the  numerous  cases 
may  be  cited  in  relation  to  benefit  to  promisor,  or  detriment  to 
promisee.  The  making  of  a  payment  upon  a  promissory  note 
before  it  is  legally  demandable,  is  a  sufficient  consideration  for  a 
promise  by.  the  holder  to  extend  the  time  of  payment  of  the  bal- 
ance of  the  note.  Newsom  v.  Finch,  25  Barb.  175  ;  Redman  v. 
Deputy,  26  Ind.  338  ;  Warner  v.  Campbell,  26  lU.  282  ;  Fowler 
V.  Brooks,  13  N.  H.  240  ;    Wright  v.  Bartlett,  43  id.  548. 

Where  the  benefit  to  a  party  is  the  prevention  of  a  diminution 
in  the  value  of  his  property,  this  is  a  sufficient  consideration  for 
a  contract.     Ordineal  v.  Farry,  24  Miss.  9. 

Where  a  borrower  of  money  promises  to  discharge  the  lender's 
debt  in  consideration  of  the  loan,  but  without  the  knowledge  of 
the  lender' s  creditor,  this  is  sufficient  to  enable  the  latter  to 
enforce  the  promise  of  the  borrower.  Lawrence  v.  Fox,  20  N.  Y. 
(6  Smith)  268  ;  Barringer  v.  Warden,  12  Cal.  311. 

The  delivery  of  property  belonging  to  a  debtor,  and  its  accept- 
ance by  a  third  party,  for  the  purpose  of  paying  the  debts  of  the 
former,  is  a  sufficient  consideration  for  a  promise  by  the  latter  to 
pay  the  claim  of  the  creditor  of  such  debtor.    Smith  v.  Rogers, 

35  Vt.  140. 

A  very  slight  advantage  to  one  party,  and  a  trifling  inconven- 
ience to  the  other,  is  a  sufficient  consideration  to  support  a  contract, 
when  made  by  a  person  of  good  capacity,  who  is  at  the  time  under 
the  influence  of  any  fraud,  imposition,  or  mistake.  Harlan  v. 
Harlan,  20  Penn.  St.  303  ;  Oakley  v.  Boorman,  21  Wend.  588  ; 
Clark  V.  Gaylord,  24  Conn.  484. 

It  is  not  necessary  that  the  benefit  should  be  direct  or  certain, 
for  a  contingent,  uncertain,  or  indirect  benefit  is  a  sufficient  con- 
sideration for  undertaking  a  bailment.  Newhall  v.  Paige,  10 
Gray  (Mass.),  366  ;  see  Clark  v.  Gaylord,  24  Conn.  484. 

The  incurring  of  a  legal  liability  by  one  person,  at  the  request  of 
another,  is  a  sufficient  consideration  for  a  promise  of  indemnity 


GENERAL  PRINCIPLES  OF  CONTRACTS.  93 

made  by  the  latter  to  the  former ;  as  in  the  case  of  the  indorse- 
ment of  a  promissory  note.  Litchfield  v.  Falconer,  2  Ala.  280  ; 
L^  Amoreux  v.  Gould,  7  N.  Y.  (3  Seld.)  349  ;  Gardner  v.  Webber, 
Yl  Pick.  407. 

So  of  a  case  in  which  a  person  becomes  surety  for  another  by 
signing  a  bond  at  his  request.  Perkins  v.  Mayfield,  5  Port. 
(Ala.)  182. 

An  agreement  to  pay  a  debt  in  coin,  and  the  giving  of  a  mort- 
gage to  secure  its  payment  will  support  a  promise  by  the  creditor 
to  extend  the  time  of  payment.    Kinsey  v.  Wallace,  36  Cal.  462. 

The  assignment  of  a  judgment  is  a  sufficient  consideration  to 
support  a  promise  made  by  the  assignee.  Dicker  son  v.  Derrick- 
son,  39  111.  574. 

A  promise  to  pay  to  a  constable  the  amount  of  an  execution 
placed  in  his  hands  for  collection,  if  he  will  release  a  levy  made 
under  it,  is  a  sufficient  consideration  for  such  promise.  West  v. 
Hosea,  5  Harr.  (Del.)  232 ;  Skelton  v.  Brewster,  8  Johns.  376 ; 
Hinman  v.  Moulton,  14  id.  466. 

Where  a  sheriff  has  levied  upon  goods  by  virtue  of  an  exeeu 
tion,  a  delivery  or  such  goods  to  a  receiptor  is  a  good  considera- 
tion to  support  a  promise  by  the  latter  to  return  the  goods. 
Lockwood  V.  Bull,  1  Cow.  322  ;  Dezell  v.  Odell,  3  Hill,  215  ;  Potter 
V.  Sewall,  54  Me.  142. 

§  4.  Of  the  adequacy  of  the  consideration.  The  law  has  no 
means  of  judging  of  the  actual  or  precise  value  of  a  considera- 
tion ;  and,  therefore,  as  a  general  rule,  it  does  not  inquire  as  to 
the  value  of  a  consideration,  provided  it  be  of  some  value,  and 
be  legal  in  its  nature.  It  is  not  necessary  that  the  consideration 
on  each  side  shall  be  of  equal  value,  nor  that  a  contract  or  prom- 
ise shall  be  supported  by  a  consideration  equal  in  value  to  the 
promise  or  contract  of  the  other  party  of  the  contract.  If  no 
contracts  were  valid  except  such  as  appeared  to  be  of  equal 
value  to  each  party,  very  few  contracts  would  be  made;  and 
such  as  were  made  would  be  quite  likely  to  be  invalid  for  inequal- 
ity. 

In  general,  it  may  be  said  that  neither  party  expects  or  be- 
lieves that  the  considerations  or  the  promises  on  each  side  cor- 
respond in  value ;  or  that  the  consideration  on  the  one  side,  and 
the  promise  on  the  other  are  of  equal  value ;  as  is  sufficiently 
evident  from  the  fact  that  one  or  both  of  the  parties  expects  to 
be  the  gainer  in  some  manner  from  the  contract. 

If  there  be  no  legal  objection  to  the  validity  of  a  considera- 


94  GENERAL  PRINCIPLES  OF  CONTRACTS. 

tion,  or,  in  other  words,  if  it  be  not  illegal,  and  it  is  of  some 
value,  it  will  be  sufficient  to  sustain  a  contract  or  promise.  San- 
horn  V.  French,  22  N.  H.  246,  248 ;  Whittle  v.  Skinner,  23  Vt. 
532  ;  Oakley  v.  Boorman,  21  Wend.  588,  594 ;  Hubbard  v.  Cool- 
idge,  1  Mete.  (Mass.)  84  ;  Clark  v.  Sigourney,  17  Conn.  511. 

Each  party  is  permitted  to  use  his  own  judgment  as  to  the 
value  or  equality  of  the  consideration  ;  and,  where  the  contract 
is  made  in  good  faith,  it  is  not  important  how  slight  the  apparent 
benefit  be  to  the  promisor ;  or  how  insignificant  the  damage  ap- 
pears to  be  to  the  promisee ;  in  either  case  the  most  trifling  con- 
sideration will  be  sufficient,  if  it  be  not  utterly  worthless,  in  fact 
and  in  law.  "If  the  contract  is  fairly  made,  with  a  full  under- 
standing of  all  the  facts,  the  '  smallest  spark '  of  consideration 
is  sufficient."     Sanborn  v.  French,  22  N.  H.  248. 

If  a  contract  is  deliberately  made,  without  fraud,  and  with,  a 
full  knowledge  of  all  the  circumstances,  the  least  consideration 
will  be  sufficient.  Train  v.  Gold,  5  Pick.  384.  "The  slightest 
consideration  is  sufficient  for  the  greatest  undertaking."  Oakley 
V.  Boorman,  21  Wend.  688,  594 ;  Johnson  r.  Titus,  2  Hill  (N.  Y.), 
606. 

A  promise  to  pay  a  sum  of  money  claimed,  if  the  claimant 
will  make  an  affidavit  of  the  correctness  of  the  claim,  is  suffici- 
ent and  binding  if  the  affidavit  be  made.  Brooks  v.  Ball,  18 
Johns.  337.  See,  also,  Hurd  v.  Pendrigh,  2  Hill,  502.  So  of 
an  agreement  to  pay  such  sum  as  a  specified  person  should  say 
was  a  reasonable  compensation  for  certain  services  rendered  by 
the  claimant,  will  be  sufficient  to  enable  the  latter  to  recover  such 
sum  as  may  be  fixed  by  the  person  so  named.  Culley  v.  Har- 
denburgh,  1  Denio,  508.  So  where  a  claim  is  made,  but  is  dis- 
puted, and  the  claimant  offers  to  be  satisfied  if  the  other  party 
will  swear  that  nothing  is  due,  and  the  latter  makes  an  affidavit 
to  that  effect,  this  will  bar  an  action  upon  such  claim.  Rourke 
V.  Duffy,  15  Abb.  Pr.  340.  So  an  agreement  by  a  creditor  to 
accept  less  than  the  face  of  his  demand,  upon  receiving  security 
for  the  amount  to  be  paid,  is  founded  upon  a  sufficient  consider- 
ation by  reason  of  the  benefit  derived  from  the  additional  secur- 
ity. Phillips  V.  Berger,  2  Barb.  (N.  Y.)  608 ;  8  id.  527 ;  Little 
V.  Hobbs,  34  Me.  357  ;  Boyd  v.  Hitchcock,  20  Johns.  76  ;  Brooks 
V.  WJiite,  2  Mete.  (Mass.)  283. 

If  the  consideration  is  evidently  worthless,  it  is  not  sufficient 
to  support  a  contract.  And  where  a  claim  is  legally  groundless, 
a  promise  upon  a  compromise  of  it  and  of  one  cent  in  addition, 


GENERAL  PRINCIPLES  OF  CONTRACTS.  95 

is  not  enough  to  support  a  promise  to  pay  the  sum  of  six  hun- 
dred dollars.  Sclmell  v.  Nell.  17  Ind.  29.  So  if  a  judgment 
creditor  gives  to  the  judgment  debtor  a  written  acknowledgment 
of  the  receipt  of  ten  dollars  in  full  discharge  of  a  judgment  for 
ninety  dollars,  this  will  not  prevent  the  enforcement  of  the  judg- 
ment of  the  residue.    Bailey  v.  Day,  26  Me.  88. 

A  promise  by  a  father  to  his  son  to  discharge  the  latter  from  a 
note  held  by  the  former,  in  consideration  that  the  son  would  not 
make  any  more  complaints  about  the  father' s  distribution  of  his 
property,  is  void  for  want  of  consideration.  White  v.  Bluett,  24 
Eng.  Law  &  Eq.  434  ;  23  L.  J.  (N.  S.)  Exch.  36. 

A  verbal  promise  to  sell  goods  to  a  responsible  party  for  their 
full  value  and  on  the  usual  terms,  forms  no  consideration  for  an 
independent  engagement  to  pay  the  antecedent  debt  of  a  third 
person.  Pfeiffer  v.  Adler,  37  N.  Y.  (10  Tiff.)  164  ;  4  Trans.  App. 
95  ;  and  see  Belknap  v.  Bender,  6  N.  Y.  S.  C.  (T.  &  C.)  611 ;  4 
Hun,  414. 

An  executory  promise  to  pay  a  sum  of  money  to  be  recanted 
from  a  bargain  which  is  void  by  the  Statute  of  Frauds,  is  not 
binding  because  there  is  no  consideration  to  support  it.  Silver- 
nail  V.  Cole,  12  Barb.  685,  The  sale  of  a  chose  in  action  which 
is  absolutely  void  does  not  furnish  any  consideration  for  a  prom- 
ise.    Sherman  v.  Barnard,  19  Barb.  291. 

Although  mere  inadequacy  of  consideration  is  not  usually  a 
ground  for  setting  aside  or  holding  a  contract  to  be  void  ;  yet, 
where  the  inadequacy  of  consideration  is  evident  and  gross,  it 
may  create  a  presumption  of  fraud,  mistake,  overreaching  ;  or 
of  unconscientious  advantage,  and  thus  induce  a  court  of  equity 
to  interfere  and  set  aside  a  contract  so  entered  into.  Hough  v. 
Hunt,  2  Ohio,  495,  502 ;  Udall  v.  Kenney,  3  Cow.  590  ;  Harde- 
man V.  Burge,  10  Yerg.  202 ;  W or  muck  v.  Rogers,  9  Ga.  60 ; 
Judge  V.  Wilkins,  19  Ala.  765  ;  Williams  v.  Powell,  1  Ired.  Eq. 
460.  In  such  cases,  however,  it  is  the  fraud  or  undue  advantage 
that  furnishes  the  ground  of  relief.  lb. 

§  5.  Prevention  of  litigation  as  a  consideration.  The  law  favors 
the  settlement  of  disputes  and  the  prevention  of  litigation  ;  and, 
therefore,  compromises  of  doubtful  and  conflicting  rights  and 
claims,  the  settlement  of  boundaries,  and  other  similar  arrange- 
ments, are  not  only  good  and  sufficient  considerations  for  agree- 
ments, but  are  highly  favored  in  the  law.  Scott  v.  Warner,  2  Lans. 
49  ;  Stewart  v.  Ahrenfeldt,  4t  Denio,  189 ;  Farmers^  Bank  of 
Amsterdam  v.  Blair,  44  Barb.  641,  652.    A  note  which  is  given 


96  GENERAL  PRINCIPLES  OF  CONTRACTS. 

upon  the  settlement  of  a  doubtful  claim  preferred  against  the 
maker,  will  be  upheld  as  founded  upon  a  sufficient  considera- 
tion, without  regard  to  the  legal  validity  of  the  claim.  Mussell 
V.  CooJc,  3  Hill,  504  ;  Keefe  v.  Yogel,  36  Iowa,  87. 

The  withdrawal  of  legal  proceedings,  which  were  instituted 
for  the  purpose  of  asserting  claims  to  property,  and  the  procur- 
ing of  releases  from  the  claimants,are  a  sufficient  consideration  to 
support  an  agreement  for  a  division  of  such  property.  Downer 
V.  CJiurch,  44  N.  Y.  (6  Hand)  647.  So,  the  withdrawal  of  a  ca- 
veat by  an  heir  at  law  to  the  proving  of  the  will  of  his  ancestor, 
is  a  sufficient  consideration  to  support  a  promise  by  the  devisees 
for  the  payment  of  a  specified  sum  of  money.  Seaman  v.  Sea- 
man, 12  Wend.  381.  So  an  agreement  by  the  principal  bene- 
ficiary under  a  will,  with  testator's  heirs  who  threaten  to  oppose 
the  probate  of  the  will,  that  if  they  will  sign  an  admission  of 
the  service  of  the  citation  and  will  not  contest  the  proof  of  the 
will,  he  will  pay  each  of  them  a  specified  sum,  this  is  a  valid 
consideration  ;  and  an  acceptance  and  performance  of  the  terms 
by  the  heirs  will  enable  them  to  maintain  an  action  upon  the 
promise.  Palmer  v.  North,  35  Barb.  282 ;  see  Bedell  v.  Bedell, 
3  Hun,  580 ;  S.  C,  6  N.  Y.  S.  C.  (T.  &  C.)  324  ;  Hill  v.  BucTcmin- 
ster,  5  Pick.  393.  The  compromise  of  a  doubtful  and  conflicting 
claim  is  a  good  consideration  for  a  new  agreement.  PitJcin  v- 
Noyes,  48  N.  H.  294 ;  S.  C,  2  Am.  Rep.  218,  228. 

When  there  is  a  dispute  as  to  the  title  to  land,  and,  for  the 
purpose  of  compromising  it,  one  of  the  parties  agrees  to  convey 
the  land  to  the  other  with  warranty,  and  the  other  promises  to 
pay  him  a  sum  of  money  therefor,  the  agreement  will  be  valid 
and  binding,  in  the  absence  of  fraud  or  imposition.  Moore  v. 
Fitzwaier,  2  Rand.  (Ya.)  442;  and  ^ee  Mills  v.  Lee,  6  T.B.Monr. 
(Ky.)  91. 

In  all  such  cases  of  compromises,  however,  there  must  be  a 
case  where  there  could  be  some  pretense  of  a  claim  sustained, 
though  the  result  of  a  litigation  might  be  involved  in  doubt.  If 
the  claim  made  is  one  which  is  utterly  and  palpably  untenable, 
either  in  fact  or  in  law,  no  action  will  lie  upon  the  compromise 
of  such  a  claim.  Dolcher  v.  Fry,  37  Barb.  152;  Silvernail  v. 
Cole,  12  id.  685 ;  Cahot  v.  HasMns,  3  Pick.  83;  Martin  v.  BlacTc, 
20  Ala.  309  ;  Jarms  v.  Sutton,  3  Ind.  289. 

§  6.  Forbearance  as  a  consideration.  An  agreement  to  forbear 
either  absolutely,  or  for  a  certain  time,  or  for  a  reasonable  time, 
to  institute  or  prosecute  legal  or  equitable  proceedings  to  enforce 


GENERAL  PRINCIPLES  OF  CONTRACTS.  97 

a  legal  or  equitable  demand,  is  a  sufficient  consideration  for  the 
promise  of  the  debtor,  or  of  a  third  person,  to  pay  the  debt  or 
do  any  other  act.  By  such  forbearance  the  creditor  is  delayed, 
and  the  debtor  is  or  may  be  benefited ;  so  that  there  concur  both 
the  ordinary  grounds  upon  which  a  sufficient  consideration  may 
be  rested.  1  Chit.  Cont.  36  ;  Watson  v.  Randall,  20  Wend.  201; 
Mechanics  &  Farmers'  Bank  of  Albany  v.  Wixson,  42  N.  Y.  (3 
Hand)  438 ;  Halces  v.  BbtchJciss,  23  Yt.  235. 

If  the  claim  is  a  well-founded  one,  or,  even  if  it  be  doubtful,  a 
forbearance  to  prosecute  it  for  a  reasonable  or  a  certain  time 
will  be  a  sufficient  consideration  for  a  promise.  Haggerty  v. 
Allaire  Works,  5  Sandf.  230;  Hilter  v.  Phillips,  5S  N.Y.  {8 
Sick.)  586  ;  Jennison  v.  Stafford,  1  Cush.  (Mass.)  168  ;  Rood  v. 
Jones,  1  Doug.  (Mich.)  188;  Underwood  y.  HassacTc,  38  111.  208; 
Templeton  v.  Bascom,  33  Yt.  132 ;  Lowe  v.  Weatherly,  4  Dev.  & 
Bat.  (N.  C.)  212. 

A  promise  by  one  person  to  pay  the  debt  of  another,  in  con- 
sideration that  the  creditor  will  forbear  and  give  further  time  for 
the  payment  of  the  debt,  is  a  sufficient  consideration,  although 
no  particular  time  for  forbearance  was  stipulated  for,  if  the  cred- 
itor alleges  that  he  did  forbear  from  such  a  day  to  such  a  day, 
and  that  was  a  reasonable  time.  King  v.  Upton,  4  Me.  387  j 
Elting  v.  Yanderlyn,  4  Johns.  237 ;  Allen  v.  Pryor,  3  A.  K. 
Marsh.  (Ky.)  305  ;  Oiles  v.  Ackles,  9  Penn.  St.  147 ;  Rood  Y.Jones, 
1  Doug.  (Mich.)  188. 

An  agreement  to  delay  the  collection  of  an  execution  is  a  suf- 
ficient consideration  for  a  promise  by  a  stranger  to  pay  the 
amount  of  it.  Giles  v.  Ackles,  9  Penn.  St.  147 ;  Russell  v.  Bah- 
coek,  14  Me.  138;  see  Read  v.  French,  28  N.  Y.  (1  Tiff.)  285. 

The  withdrawal  of  exceptions  and  the  dismissal  of  a  suit  con- 
stitutes a  sufficient  consideration  for  an  agreement,  even  though 
the  exceptions  were  not  well  founded.  Burne  v.  Cummings,  41 
Miss.  192. 

An  adjournment  of  the  trial  of  a  cause  in  a  justice's  court 
is  a  sufficient  consideration  for  a  promise.  Stewart  v.  McGuin, 
1  Cow.  99. 

Where  the  claim  is  one  that  clearly  cannot  be  maintained  at 
law  or  in  equity,  a  promise  founded  upon  the  forbearance  to 
prosecute  such  claim  will  not  be  enforced  because  there  is  no 
consideration  to  support  it.  Sharpe  v.  Rogers,  12  Minn.  174 ; 
Cabot  V.  Haskins,  3  Pick.  83  ;  New  Hampshire  Bank  v.  Calcord, 
15  N.  H.  119  ;  Martin  v.  Black,  20  Ala.  309  ;  Merchants'  Bank 
Y.  Pavis,*3  Ga.  112  ;  Silvernail  v.  Cole,  12  Barb.  685. 
Vol.  L  — 13 


98  GENERAL  PRINCIPLES  OF  CONTRACTS. 

Although,  as  has  been  stated,  ante^  97,  a  promise  to  forbear 
for  a  certain  time  or  for  a  reasonable  time,  it  has  been  held  that  a 
promise  of  forbearance  for  a  short  time  is  not  sufficient,  since  the 
party  promising  might,  in  such  case,  sue  immediately  after  the 
promise  was  made.  Lonsdale  v.  Brown,  4  Wash.  C.  C.  148  ;  Sid- 
well  Y.  Ecans,  1  Penn.  385  ;  McCorney  y.  Stanley,  8  Cush.  (Mass.) 
85  ;  Garnett  v.  KirTcman,  33  Miss.  389  ;  Bixler  v.  Ream,  3  Penn. 
282. 

It  is  not  important  that  the  person  who  makes  the  promise,  in 
consideration  of  forbearance,  should  be  benefited  by  the  delay. 
Maud  V.  WaterJiouse,  2  C.  &P.  579  ;  Smith  v.  Algar,  1  B.  &  Ad. 
603  ;  Sage  v.  Wilcox,  6  Conn.  81. 

The  waiver  of  a  legal  right;  at  the  request  of  another  person, 
is  a  sufficient  consideration  for  a  promise  made  by  him.  Sykes  v. 
Laffery,  27  Ark.  407 ;  Smith  v.  Weed,  20  Wend.  184  ;  Farmer  v. 
Stewarts  2  N.  H.  97 ;  Williams  v.  Alexander,  4  Ired.  Eq.  207 ; 
Waterman  v.  Barratt,  4  Harr.  (Del.)  311. 

§  7.  Assignment  of  a  deM  or  a  right  of  action  arising  upon 
contract.  The  assignment  of  a  debt,  or  of  a  right  of  action 
founded  upon  contract,  is  a  valid  consideration  for  a  promise  by 
the  assignee  ;  and  there  are  very  few  causes  of  action  arising 
upon  contract  which  may  not  be  assigned.  At  common  law, 
however,  such  an  assignment  did  not  ordinarily  vest  in  the  assignee 
a  right  of  action  in  his  own  name  against  the  party  liable  to  pay. 
Jessel  V.  Williamshurgh  Ins.  Co.,  3  Hill,  88.  But  an  express 
promise,  by  the  debtor  to  the  assignee,  to  pay  the  debt  enabled 
the  latter  to  maintain  an  action  thereon  in  his  own  name.  Compton 
Y.  Jones,  4  Cow.  13 ;  Edson  v.  Fuller,  22  N.  H.  183 ;  Page  v. 
Danforth,  53  Me.  174  ;  Moar  v.  Wright,  1  Vt.  57. 

Although,  at  common  law,  an  action  must  be  brought  in  the 
name  of  the  assignor  in  some  cases,  the  rights  of  the  assignee 
were,  in  all  proper  cases,  fully  protected  by  the  courts  in  actions 
so  brought.  Briggs  v.  Dorr,  19  Johns.  95  ;  Timan  v.  Leland,  6 
Hill,  237. 

If  the  chose  in  action  was  a  negotiable  one,  it  might  be  trans- 
ferred by  indorsement,  or  otherwise,  so  as  to  give  the  holder  or 
owner  a  right  of  action  in  his  own  name,  as  in  the  case  of  bills  of 
exchange  and  promissory  notes. 

In  courts  of  equity  the  distinction  between  negotiable  and 
non-negotiable  choses  in  action  did  not  prevail ;  and  the  real 
party  in  interest  might  sue  in  his  own  name. 

The  Code  of  Procedure  of  New  York,  §  111,  adopts  the  equitable 
rule,  and  authorizes  all  actions  to  be  brought  in  the  name  of  the 


GENERAL  PRmCIPLES  OF  CONTRACTS.  99 

real  party  in  interest.  The  rights  or  causes  of  action  which  are 
thus  assignable  are  very  numerous,  and  include  every  cause  of 
action  arising  upon  contract,  either  in  the  nature  of  a  debt,  or  of 
a  right  to  recover  damages  for  the  breach  of  a  contract ;  and, 
therefore,  judgments,  bonds,  mortgages,  bills  of  exchange,  prom- 
issory notes,  due  bills,  chattel  notes,  debts,  accounts,  contracts 
and  agreements,  may,  any  or  all  of  them,  be  assigned  by  one 
person  to  another  so  as  to  confer  a  right  of  action  thereon  in  the 
name  of  the  assignee.  A  right  of  action  for  the  breach  of  a  con- 
tract to  deliver  personal  property  is  assignable,  and  the  assignee 
may  sue  in  his  own  name  for  the  damages  recoverable.  Sears  v. 
Conover,M  Barb.  330;  3  Keyes,  113;  33  How.  324;  4  Abb.  Ct. 
App.  179. 

A  guaranty  for  the  payment  of  a  note  or  debt  is  assignable, 
and  the  assignee  must  sue  in  his  own  name.  Small  v.  Sloan,  1 
Bosw.  352. 

The  balance  due  upon  an  unsettled  account  is  assignable. 
Wescott  V.  Potter,  40  Yt.  272.  And  the  assignee  may  sue  in  his 
own  name.     Allen  v.  Smith,  16  N.  Y.  (2  Smith)  415. 

A  sheriff  may  assign  his  claim  to  fees  for  services  already  ren- 
dered, but  not  for  such  as  are  not  yet  earned.  Birkheck  v.  Staf- 
ford, 23  How.  Pr.  236 ;  14  Abb.  285  ;  Mulliall  v.  Quinn,  1 
Gray  (Mass.),  105.  An  assignment  by  a  public  officer  of  his 
salary  before  it  is  earned  or  due,  is  contrary  to  public  policy, 
and,  therefore,  void.  Bliss  v.  Lawrence,  58  N.  Y.  (13  Sick.) 
442;  48  How.  21.  But  see  contra.  State  Bank  v.  Hastings,  15 
Wis.  75. 

The  subject  of  assignments,  their  validity,  and  the  rights  of 
assignees  will  be  fully  discussed  in  a  subsequent  place.  See  title 
Assignment. 

§  8.  Assignment  or  sale  of  property.  The  sale  of  property, 
and  the  right  of  the  vendor  to  recover  the  price,  is  one  of  the 
most  familiar  cases  relating  to  the  consideration  for  a  promise. 
This  whole  subject  will  be  illustrated  in  the  titles.  Sale;  Goods 
Sold,  etc. 

§  9.  Services  rendered,  rewards  oifered.  The  performance  of 
labor,  or  the  rendering  of  personal  services,  form  a  very  usual 
ground  of  consideration  for  a  promise  to  pay  for  them  ;  and  are 
legally  sufficient  if  rendered  upon  a  request,  express  or  implied. 
This  subject  will  be  noticed  hereafter.     See  Labor;  Service. 

The  request  and  the  promise  contained  in  a  public  advertise- 
ment, which  oflFers  a  reward,  is  a  sufficient  consideration  to  sus- 


100         GENERAL  PRINCIPLES  OF  CONTRACTS. 

lain  an  action  in  favor  of  any  one  who  complies  with  the  terms 
and  conditions  specified. 

A  sheriff,  who  publicly  offers  a  reward  for  the  detection  and 
apprehension  of  a  specified  criminal,  is  personally  liable  to  the 
person  who  gives  the  information  which  leads  to  the  arrest  and 
conviction  of  such  criminal.  Prentiss  v.  Farn7iam,2'2  Barb.  51^. 

So  an  offer  made  to  pay  a  reward  for  the  conviction  of  the 
perpetrator  of  a  specified  crime,  although  made  by  one  having 
no  interest  in  the  matter,  is  a  sufficient  consideration  for  the 
promise,  if  a  conviction  is  secured  under  such  offer.  Furman 
V.  ParJce,  21  N.  J.  L.  (1  Zabr.)  310 ;  see,  also,  Lee^.  Trustees  of 
Fleming sMirg,  7  Dana  (Ky.),  28. 

If  the  selectmen  of  a  town,  acting  under  the  authority  of  a 
general  statute,  offer  a  reward  for  the  apprehension  and  convic- 
tion of  a  person  guilty  of  a  crime,  an  action  will  lie  against  the 
town  in  favor  of  one  who  has  performed  such  service.  Janmin 
V.  Exet&r,  48  N.  H.  83  ;  S.  C,  2  Am.  Rep.  185 ;  see,  also,  Craw- 
shaw  V.  Eoxhury,  7  Gray  (Mass.),  374. 

The  offer  of  a  reward  to  a  particular  person,  to  a  specified  class 
of  persons,  or  to  all  persons,  is  a  conditional  promise  ;  and  if 
either  of  such  persons  perform  the  service  required  before  a  re- 
vocation of  Jthe  offer,  such  performance  is  a  sufficient  considera- 
tion to  ren(fier  the  offer  a  binding  contract.  Freeman  v.  Boston, 
5  Mete.  (Mass.)  56  ;  Morrell  v.  Quarles,  35  Ala.  544  ;  Jtyer  v. 
Stockwell,  14  Cal.  134  ;  Smith  v.  Moore,  1  C.  B.  438 ;  Thatcher 
V.  England,  3  id,  254. 

Where  a  reward  is  offered  for  the  apprehension  of  a  criminal, 
and  the  recovery  of  the  moneys  feloniously  obtained  by  him,  it 
is  essential  to  a  right  of  action  that  there  should  be  both  an 
apprehension  of  the  offender  and  a  recovery  of  the  moneys. 
Jones  V.  Phcenix  BanTc,  8  N.  Y.  (4  Seld.)  228. 

Where  the  reward  offered  merely  requires  information  which 
will  lead  to  the  detection  of  an  offender,  it  will  be  sufficient  for 
the  claimant  to  prove  that  he  gave  to  the  offerer  of  the  reward 
such  information  as  led  him  to  have  the  suspected  person  arrested 
for  the  offense.    Brennan  v.  Haff,  1  Hilt.  151. 

An  offer  of  a  reward  to  a  public  officer  to  do  what  it  is  legally 
his  duty  to  do  without  such  reward,  is  contrary  to  public  policy 
and  cannot  be  enforced.  Hatch  v.  Mann,  15  Wend.  44  ;  Smith 
V.  Whildin,  10  Penn.  St.  39  ;  Pool  v.  Boston,  5  Cush.  (Mass.)  219. 

This  rule,  however,  does  not  apply  when  no  such  duty  is  im- 
posed upon  the  officer,  as  where  a  promised  reward  is  claimed 


GENERAL  PRINCIPLES  OF  CONTRACTS.         101 

by  a  police  officer  of  another  State  for  arresting  a  fugitive  to  that 
State.  Morrell  v.  Quarles,  35  Ala.  544 ;  see,  also,  City  Bank  v. 
Bangs,  2  Edw.  Ch.  95 ;  England  v.  Davidson,  11  Ad.  &  E.  856. 
Rewards  are  also  frequently  offered  for  various  acts  and  things, 
other  than  the  detection,  arrest,  or  conviction  of  criminals,  as  in 
the  case  of  a  lost  child.  FalUcliY.  Barher,  1  Maule  &  Selw.  108. 
Or  for  the  recovery  of  lost  goods  or  personal  property.  Howland 
V.  Lownds,  51  N.  Y.  (6  Sick.)  604 ;  10  Am.  Rep.  654.  Or  choses 
in  action,  and  the  like  instances. 

An  offer  of  a  reward  is  not  to  be  regarded  as  unlimited  in  time, 
and  as  continuing  until  it  is  formally  withdrawn,  but  will  be 
restricted  to  what  is,  under  the  circumstances,  a  reasonable  time. 
Loring  v.  Boston,  7  Mete.  (Mass.)  409. 

A  person  who  claims  a  reward  offered  for  the  recovery  of  lost 

property,  or  for  information  leading  to  its  recovery,  must  show 

.  a  performance  of  the  services  required,  and  that  this  was  done 

j-j  after  a  knowledge  of  the  offer  of  the  reward,  and  in  pursuance  of 

Q-,  the  offer  made.    Rowland  v.  Lownds,  51  N.  Y.  (6  Sick.)  604 ;  10 

;-;^  Am.  Rep.  654  ;  Fitch  v.  SnedaJcer,  38  N.  Y.  (11  Tiff.)  248  ;  7  Trans. 

rr\  App.  228  ;  but  see    The  Auditor  v.  Ballard^  9  Bush  (Ky.),  572  ; 

.  15  Am.  Rep.  728.    A  person  who  recovers  stolen  property,  and 

^2  returns  it  to  the  owner,  who  gives  the  finder  a  sum  of  money 

^  which  is  accepted  as  payment  for  his  services,  cannot  recover  the 

p::^  amount  of  a  reward  offered  for  such  services,  where  the  services 

w  were  rendered  without  any  knowledge  of  such  offered  reward. 

Marvin  v.  Ti'eat,  37  Conn.  96  ;  9  Am.  Rep.  307. 

§  10.  Trust  and  confldeuce  as  a  consideration.  The  fact  of  in- 
trusting a  person  with  property  is  a  consideration,  in  itself, 
for  his  promise  that,  if  he  acts  upon  the  trust,  he  will  faithfully 
discharge  it.  McNeilly  v.  Richardson,  4  Cow.  607 ;  Norton  v. 
Kidder,  54  Me.  189 ;  Graves  v.  Tichnor,  6  N.  H.  537 ;  Clark  v. 
Gaylord,  24  Conn.  484;  Robinson  v.  Threadgill,  13  Ired.  39. 
As  a  general  rule,  no  person  is  bound  to  accept  such  a  trust, 
but  if  he  voluntarily  does  so,  he  will  be  required  to  perform  it 
fairly  and  fully.  If  money  is  collected  and  placed  in  the  hands 
of  town  officers,  for  the  purpose  of  paying  the  interest  upon 
bonds  issued  by  the  town,  pursuant  to  a  statute,  and  the  statute 
makes  it  the  duty  of  the  officer  to  apply  the  money  in  satisfaction 
of  such  interest,  a  bondholder  may  maintain  an  action  against 
such  officers  to  recover  the  interest  due  upon  bonds  held  by  him. 
Murdock  v.  Aikin,  29  Barb.  59  ;  Ross  v.  Curiiss,  31  N.  Y.  (4 
Tiff.)  606  ;  30  Barb.  238.     A  town  collector  who  had  collected  a 


102         GENERAL  PEINCIPLES  OF  CONTRACTS. 

tax  imposed  by  virtue  of  a  statute,  cannot  refuse  to  pay  over 
the  money  upon  the  ground  of  invalidity  in  the  proceedings 
under  which  bonds  were  issued,  and  upon  which  the  money  was 
to  be  applied.    People  v.  Brown,  55  N.  Y.  (10  Sick.)  180. 

§  11.  Mutual  promises  as  a  consideration.  A  promise  is  a  good 
consideration  for  a  promise,  whether  oral  or  in  writing,  unless  a 
written  promise  is  required  by  some  statute,  or  some  rule  of  law. 
A  large  part  of  the  executory  contracts  made,  consists  of  nothing 
more  than  a  promise  for  a  promise.  For  instance,  two  persons 
enter  into  a  written  contract,  in  which  each  of  them  stipulates 
with  the  other  that  he  will  do  some  specified  act  or  thing,  by  a 
particular  time,  and  neither  of  them  performs  the  contract,  or 
any  part  of  it,  at  the  time  it  is  made.  Here,  it  is  evident,  that 
the  only  consideration  of  the  contract  is  a  promise  for  a  promise. 
And,  yet,  such  a  contract  is  as  valid  and  binding  upon  the  parties 
as  though  one  of  them  had  paid  money  or  delivered  property  to 
the  other,  in  consideration  of  which  the  latter  promised  to  do 
some  specified  thing.  Coleman  v.  Eyre^  45  N.  Y.  (6  Hand)  38, 
41 ;  Briggs  v.  Tillotson,  8  Johns.  304  ;  8age  v.  Hazard,  6  Barb. 
179  ;  EougMaling  v.  Randen,  25  id.  21 ;  Appleton  v.  Chase, 
19  Me.  74  ;  Quarles  v.  George,  23  Pick.  401 ;  Whitehead  v.  Potter, 
4lred.  257. 

If  a  contract  is  founded  solely  upon  mutual  promises  as  the 
consideration,  and  the  promises  upon  either  side  are  entirely  void, 
there  will  be  no  valid  contract,  because  there  is  no  sufficient  con- 
sideration.    See  Illegality. 

It  is  not  indispensably  necessary,  however,  that  the  promise 
should  in  all  cases  be  equallj'^  binding  in  law  upon  both  parties  ; 
for,  a  promise  of  marriage  by  an  infant  is  a  good  consideration 
for  a  corresponding  promise  by  an  adult,  and  the  latter  will  be 
bound  by  the  promise,  while  the  former  may  avoid  the  contract. 
Hunt  V.  PeaJce,  5  Cow.  475  ;  Wlllard  v.  Stone,  7  id.  22  ;  Hamil- 
ton V.  Lomax,  26  Barb.  615  ;  6  Abb.  142 ;  Cannon  v.  Alshury, 
1  A.  K.  Marsh.  (Ky.)  76  ;  Warwick  v.  Cooper,  5  Sneed,  659 ; 
Pool  V.  Pratt,  1  D.  Chip.  252. 

Where  the  promise  of  one  party  is  the  consideration  of  the 
promise  of  the  other,  the  promises  must  be  concurrent  and 
obligatory  on  both  parties  at  the  same  time.  Tucker  v.  Woods, 
12  Johns.  190;  McKinley  v.  Watkins,  13  111.  140;  James  y. 
Fulcrod,  5  Texas,  512  ;  Commercial  Bank  v.  JVolan,  7  Harr 
(Miss.)  508. 

There  are  cases  somewhat  analogous  to  a  promise  for  a  prom- 


GENERAL  PRINCIPLES  OF  CONTRACTS.         103 

ise  in  whicli  one  party  may  become  bound  without  any  corre- 
sponding promise  by  the  other  party.  If  A  requests  B  to  sell 
goods  to  C,  and  promises  to  pay  for  them  if  such  sale  is  made, 
here,  although  B  does  not  promise  to  sell  the  goods  to  C,  yet,  if 
he  subsequently  furnishes  them  as  A  requested,  the  latter  will 
be  liable  upon  his  promise.  U AmoreuxY.  Gould,!  N.  Y.  (3 
Seld.)  349  ;  Great  Nortliern  Railway  Co.  v.  Wiiham,  L.  R.,  9  C. 
P.  16  ;  S.  C,  7  Eng.  Rep.  130,  134,  note  ;  Willetts  v.  Sun  Mutual 
Ins.  Co.,  45  N.  Y.  (6  Hand)  45  ;  S.  C,  6  Am.  Rep.  31  ;  Train  v. 
Gold,  5  Pick.  380;  Hilton  v.  SouthwicJc,  17  Me.  303;  Bes 
Moines  Valley  R.R.  Co.  v.  Graff,  27  Iowa,  99  ;  S.C,  1  Am.  Rep. 
256. 

A  request  and  promise  like  those  just  mentioned  may  be  re- 
tracted, if  done  before  they  have  been  acted  upon.  Routledge 
V.  Grant,  4  Bing.  653,  660 ;  EsTcridge  v.  Glover,  5  Stew.  &  Port. 
264 ;  Boston  c&  Maine  R.  R.  v.  Bartlett,  3  Cush.  (Mass.)  225 ; 
Larmon  v.  Jordan,  Z'o  111.  204. 

An  agreement  by  a  judgment  creditor  to  discharge  and  satisfy 
his  judgment,  upon  receiving  certain  property  from  the  judg- 
ment debtor,  is  a  sufficient  consideration  for  a  promise  by  the 
latter  to  deliver  the  property.     Ginan  v.  Swadley,  3  Ind.  484. 

§  12.  Considerations  moving  from  third  persons,  or  strangers. 
The  cases  are  contradictory  upon  the  question,  whether  a  person 
can  sue  upon  a  promise,  even  though  it  be  professedly  for  his 
benefit,  where  he  is  an  entire  stranger  to  the  consideration  ;  that 
is,  where  he  has  neither  taken  any  trouble  or  charge  upon  him- 
self, nor  conferred  any  benefit  on  the  promisor ;  but  such  trouble 
has  been  sustained  or  advantage  conferred  by  a  third  person. 
1  Chit,  on  Cont.  74.  It  has  been  held,  that,  in  cases  of  simple  con- 
tract, if  one  person  makes  a  promise  to  another  for  the  benefit  of 
a  third,  it  is  not  binding  in  favor  of  the  latter,  without  a  promise 
by  him  to  the  plaintiff",  except  in  peculiar  circumstances,  as  where 
money  or  property  is  placed  in  the  hands  of  the  defendant, 
which  in  equity  and  good  conscience  belongs  to  the  defendant. 
1  Story  on  Cont.  525,  §  573;  Exchange  Banlc  of  St.  Louis  v.  Rice, 
107  Mass.  37  ;  S.  C,  9  Am.  Rep.  1 ;  Twedd.le  v.  Atkinson,  1  Best 
&  Smith,  393  ;  8  Jur.  (N.  S.)  332  ;  30  L.  J.  (Q.  B.)  265;  9  W.  R. 
781;  4  L.T.  (N.  S.)  468;  seel  Chit,  on  Cont.  75  n.  x;  11th  Am.ed. 

The  general  current  of  American  authority  is,  to  follow  the 
old  English  rule,  that  where  one  person  makes  a  promise  to 
another,  for  the  benefit  of  a  third,  the  latter  may  maintain  an 
action  upon  such  promise,  although  the  consideration  does  not 


104         GENERAL  PRUSTCIPLES  OF  CONTRACTS. 

move  from  him.  Bolianan  v.  Pope,  42  Me.  93;  Brewer  v. 
Dyer^  7  Cusli.  (Mass.)  337  ;  Crocker  v.  Higgins,  7  Conn.  347 ; 
Barker  v.  Bucklin,  2  Denio,  45  ;  Barker  v.  Bradley,  42  N.  Y. 
(3  Hand)  316;  S.C,  1  Am.  Rep.  521 ;  Barringer  v.  Warden,  12 
Cal.  311  ;  Beers  v.  Robinson,  9  Penn.  St.  229  ;  DraugTian  v. 
Bunting,  9  Ired.  10  ;  Brown  v.  0'  Brien,  1  Rich.  268. 

§  13.  Gratuitous  promises;  subscriptions  and  contributions. 
An  entirely  gratuitous  promise  is  void  for  want  of  considera- 
tion ;  and  though  it  may  be  binding  in  morals  or  in  honor,  yet 
it  cannot  be  enforced  by  action.  A  voluntary  promise  to  get  a 
vessel  insured,  and  a  neglect  to  do  so,  to  the  injury  of  the  owner 
of  the  vessel,  does  not  give  any  right  of  action.  Thome  v.  Deas, 
4  Johns.  84.  So  of  a  mere  promise  to  pay  the  debt  of  a  friend. 
Beading  R.  R.  v.  Johnson,  7  Watts  &  Serg.  317.  Or  to  pay  a 
part  of  another' s  debt  in  discharge  of  the  whole.  Whelan  v. 
Edwards,  29  Ga.  315;  and  see  Richardson  v.  Williams,  49  Me. 
658.  So,  where  several  persons  are  liable  for  counsel  fees,  a 
promise  by  one,  not  a  party  to  the  action  defended,  to  pay  a 
share  of  the  expense  is  not  binding.  Flemm  v.  Whitmore,  23 
Mo.  430. 

A  promise,  which  has  no  inducement  except  the  naked  prom- 
ise of  another  to  do  in  a  few  days  what  he  is  legally  bound  to 
do  at  once,  is  void  for  want  of  consideration.  Farrington  v. 
Ballard,  40  Barb.  512.  So,  of  a  promise  by  a  purchaser  at  a 
sheriff's  sale,  who  afterward  promises  the  debtor's  wife  that  he 
will  secure  to  her  the  balance,  if  any,  of  the  price  he  shall  obtain 
for  the  property  sold,  after  reimbursing  himself.  Heaihman  v. 
Hall,  3  Ired.  Eq.  (N.  C.)  414.  So  of  a  promise  to  give  at  the 
death  of  the  promisor,  which  is  not  binding,  and  conveys  no 
right  to  the  thing  promised.     Chevallier  v.  Wilson,  1  Texas,  151. 

A  promise  to  pay  for  past  services,which  were  not  rendered  with 
the  knowledge  or  at  the  request  of  the  promisor,  express  or  im- 
plied, cannot  be  enforced.  Bartholomew  v.  Jackson^  20  Johns. 
28;  Sanderson  v.  Brown,  hi  Me.  309,  313  ;  Allen  v.  Woodward, 
22  N.  H.  544. 

A  gratuitous  promise  by  way  of  a  voluntary  subscription  for 
some  charitable  purpose,  such  as  for  alms,  education,  religion, 
or  other  public  uses,  is  quite  common  ;  and  how  far  such  prom- 
ises are  binding  has  been  a  frequent  subject  of  litigation  in  the 
courts.  In  some  of  the  cases  it  has  been  held  that  subscriptions 
to  public  works  and  charities  cannot  be  collected  where  they  are 
purely  gratuitous,  and  where  they  have  not  operated  to  induce 


GENERAL  PRINCIPLES  OF  CONTRACTS.         105 

engagements  and  liabilities  to  tlie  knowledge  of  the  subscriber. 
Phillips  Limerick  Academy  v.  Dams,  11  Mass.  113  ;  Hamilton 
College  Y.  Stewart,  1N.Y.(1  Comst.)  581;  2  Denio,  403;  Foxcroft 
Academy  v.  Fawr,  4  Greenl.  (Me.)  382 ;_  Gait  v.  Swain," ^  Gratt. 
(Va.)  633 ;  Troy  Academy  v.  Nelson,  24  Vt.  189  ;  Curry  v. 
Rogers,  21  N.  H.  247. 

Other  cases  hold  that  if  the  subscription  book  or  paper  shows 
a  consideration  upon  its  face  ;  or,  if  it  contains  a  request  that  any 
act  shall  be  done,  and  it  is  shown  that  there  has  been  a  com- 
pliance with  such  request,  this  will  render  the  subscription 
valid.  Barnes  v.  Ferine,  12  N.  Y.  (2  Kern.)  18 ;  Trustees  v. 
Garvey,  53  111.  401 ;  S.  C,  5  Am.  Rep.  51 ;  Watkins  v.  Fames, 
9  Cush.  (Mass.)  537;  Caul  v.  Gibson,  3  Penn.  St.  416  ;  George  v. 
Harris,  4  N.  H.  535 ;  Lathrop  v.  Knapp,  27  Wis.  214 ;  Jolinston 
V.  Wahash  College,  2  Cart.  (Ind.)  555  ;  Fitt  v.  Gentle,  49  Mo. 
74  ;  Macon  v.  SJieppard,  2  Humph.  (Tenn.)  335  ;  University  of 
Vermont  v.  Buell,  2  Yt.  48. 

The  request  to  expend  money  or  do  other  acts  need  not  be 
expressed,  but  may  be  implied  from  the  nature  of  the  transac- 
tion; and  where  advances  are  made,  or  expenses  or  liabilities  are 
incurred  by  others  in  consequence  of  such  subscription,  before 
any  notice  of  withdrawal,  this  will,  on  general  principles,  render 
the  subscriptions  binding,  where  the  advances  or  acts  were  au- 
thorized by  a  fair  and  reasonable  dependence  on  the  subscriptions. 
lb.    Cooper  Y.McCrimmin,  33  Texas,  383;  S.  C,  7  Am.  Rep.  268. 

Where  subscriptions  are  made  under  an  agreement  that  they 
are  not  to  be  binding  until  a  specified  sum  is  subscribed,  it  is 
essential  that  all  the  subscriptions  should  be  absolute ;  for,  if 
any  of  the  subscriptions  necessary  to  make  up  the  required  sum 
are  made  upon  the  condition  that  the  subscribers  are  not  to  be 
called  upon  for  the  amount  subscribed,  it  is  such  a  fraud  upon 
the  other  subscribers  as  discharges  or  exonerates  them  from 
liability.  New  York  Exchange  Co.  v.  Be  Wolf,  31  N.  Y.  (4  Tiff.) 
273.  But,  when  the  full  amount  is  subscribed  in  good  faith  by 
solvent  responsible  persons,  the  subscriptions  will  be  binding, 
although  the  money  has  not  been  paid  in.  Westminster  College 
V.  Gamble,  42  Mo.  411.  Where  a  subscription  is  made  upon  cer- 
tain conditions  specified  by  the  party  subscribing,  his  subscrip- 
tion will  be  binding  when  the  acts  specified  as  conditions  have 
been  performed.  Williams  College  v.  Baiiforth,  12  Pick.  541 ; 
Cooper  V.  McCrimmin,  33  Texas,  383  ;  S.  C,  7  Am.  Rep.  268. 

YoL.  L  — 14 


106         GENERAL  PRINCIPLES  OF  CONTRACTS. 

§  14.  Illegality  of  consideration.  The  general  rule  is,  that  if 
any  part  of  an  entire  consideration  for  a  promise,  or  of  any  part 
of  an  entire  promise,  is  illegal,  whether  at  common  law,  or  by 
statute,  the  whole  contract  is  void.  Deering  v.  Chapman,  22 
Me.  488;  Buck  v.  Albee,  26  Yt.  184;  PerMns  v.  Cummings,2 
Gray  (Mass.),  258;  Carlton  v.  Bailey,  27  N.  H.  230  ;  Slierman  v. 
Barnard,  19  Barb.  291 ;  Filson  v.  Himes,  5  Penn.  St.  452  ; 
Gamble  v.  Grimes,  2  Cart.  (Ind.)  392  ;  Coulter  v.  Robertson,  14 
Sm.  &  M.  (Miss.)  18  ;  Brown  v.  Langford,  3  Bibb,  500 ;  Chand- 
ler V.  Johnson,  39  Ga.  85;  Kottwitz  v.  Alexander,  34  Texas,  689  ; 
Saratoga  County  BanTc  v.  King,  44  N.  Y.  (5  Hand)  87. 

But  where  a  contract  founded  upon  two  considerations,  one  of 
which  is  merely  void,  but  not  illegal,  and  the  other  is  valid,  the 
contract  will  be  valid  and  binding,  to  the  extent  of  the  valid  con- 
sideration, if  the  contract  is,  by  its  terms,  susceptible  of  appor- 
tionment. Hynds  v.  Hays,  25  Ind.  31 ;  Treadwell  v.  Dams,  34 
Cal.  601 ;  Chase's  Exr.  v.  BurWiolder,  18  Penn.  St.  50. 

So  where  a  contract  is  for  the  doing  of  two  or  more  things, 
which  are  entirely  distinct,  and  one  of  them  is  prohibited  by 
law,  while  the  others  are  legal,  the  illegality  of  the  one  stipula- 
tion will  not  invalidate  the  right  of  action  for  a  breach  of  the 
valid  stipulations.  Erie  Raihoay  Co.  v.  Union,  etc..  Express  Co., 
35  N.  J.  L.  240;  Clements  v.  Marston,  52  N.  H.  31  ;  Hanauer  v. 
Gray,  25  Ark.  350.  For  a  full  discussion  of  this  subject,  see  the 
title  Illegality. 

§  15.  Impossible  considerations.  The  law  does  not  attempt  to 
compel  parties  to  do  acts  or  things  which  are  naturally  impos- 
sible ;  and,  therefore,  a  contract  which  is  founded  upon  an  im- 
possible consideration  is  void  and  cannot  be  enforced.  A  con- 
sideration may  be  impossible  either  in  fact  or  in  law  ;  as  where  a 
party  promises  to  walk  one  thousand  miles  in  an  hour  ;  or,  where 
he  promises  to  discharge  a  party  from  the  obligation  due  to 
another  person  without  the  concurrence  of  the  latter.  Harvey 
V.  Gibbons,  2  Lev.  161.  But  a  contract  is  not  void,  merely 
because  its  performance  is  difficult  or  improbable.  And,  where 
the  difficulty  relates  to  the  promisor  personally,  it  is  his  duty  to 
weigh  carefully  the  difficulty  or  the  improbability  of  the  perform- 
ance on  his  part,  before  he  binds  himself  to  perform  it.  For, 
if  a  man  agrees  to  do  something  which  is  at  the  time  impos- 
sible in  fact,  though  not  impossible  in  its  nature,  he  will  be 
liable  in  damages  for  a  non-performance  of  his  contract. 
As  where    there  is   a   contract   to   deliver  "prime"  or  "first 


GENERAL  PRINCIPLES  OF  CONTRACTS.         107 

class "  teas,  it  is  no  defense  to  show  that  no  such  teas  could 
be  procured  at  the  season  of  the  year  when  they  were  to  be 
delivered,  because  none  were  to  be  found  in  the  market.  Gil- 
pins  V.  Consequa,  1  Peters'  C.  C.  86,  91.  So,  an  agreement  to 
transport  and  deliver  goods  at  a  distant  place  is  not  excused  by 
the  fact  that  the  non-delivery  within  the  agreed  time  was  caused 
by  an  unusual  freshet,  which  rendered  a  public  canal  impassa- 
ble so  long  as  to  prevent  the  due  performance  of  the  contract. 
Harmony  v.  Bingham,  12  N.  Y.  (2  Kern.)  99. 

A  contract  to  perfect  a  patent  right  in  a  foreign  country  for 
the  plaintiflT  s  benefit  is  binding,  although  the  act  could  not  be 
done  without  the  aid  of  an  act  of  parliament.  Beebe  v.  Johnson, 
19  Wend.  500. 

This  matter  will  form  the  subject  of  a  separate  article.  See 
Impossible  Contracts,  etc. 

§  16.  Considerations  void  in  part.  "A  doctrine  which  is  ex- 
pressed in  the  words  '  void  in  part,  void  in  toto,'  has  often  found 
its  way  into  books  and  judicial  opinions  as  descriptive  of  the 
effect  which  a  statute  may  have  upon  deeds  or  other  instruments 
which  have  in  them  some  forbidden  vice.  There  is,  however,  no 
such  general  principle  of  law  as  the  maxim  would  seem  to  indi- 
cate. On  the  contrary,  the  general  rule  is,  that  if  the  good  be 
mixed  with  the  bad  it  shall  nevertheless  stand,  provided  a  sepa- 
ration can  be  made.  The  exceptions  are  :  First.  Where  a  stat- 
ute, by  its  express  terms,  declares  the  whole  deed  or  contract 
void  on  account  of  some  provision  which  is  unlawful ;  and. 
Second.  Where  there  is  some  all-pervading  vice,  such  as  fraud, 
for  example,  which  is  condemned  by  the  common  law,  and  avoids 
all  parts  of  the  transaction  because  all  are  alike  infected." 
Curtis  V.  Leamtt,  15  N.  Y.  (1  Smith)  9,  96,  97. 

It  sometimes  happens  that  a  contract  is  void  in  part,  and  valid 
in  part,  and  the  question  is  made  whether  the  void  part  invali- 
dates the  entire  contract.   See  ante,  106,  §  14. 

If  one  or  more  of  the  considerations  are  merely  frivolous  and  in- 
sufficient and,  therefore,  void,  but  not  illegal ;  and  there  are  other 
good  and  sufficient  considerations,  in  such  case  the  considera- 
tions may  be  severed  and  full  effisct  given  to  the  valid  ones,  while 
the  insufficient  ones  are  disregarded.  Parish  v.  Stone,  14  Pick. 
198  ;  Hynds  v.  Hays,  25  Ind.  31 ;  Treadwell  v.  Davis,  34  Cal. 
601. 

§  17.  Mere  mqral  consideration.  Unless  there  is  what  the  law 
considers  a  valuable  consideration,  it  will  not  be  sufficient  to  sus- 


108         GENERAL  PRINCIPLES  OF  CONTRACTS. 

tain  an  action.  A  mere  moral  obligation  alone  is  not  sufficient 
to  sustain  a  promise,  unless  it  is  founded  upon  a  previous  legal 
liability.  The  law  does  not  assume  to  enforce  every  promise 
which  a  man  of  nice  honor  or  strict  integrity  would  feel  bound 
to  perform.  And,  therefore,  the  performance  of  many  purely 
moral  obligations  are  left  to  the  good  faith  of  the  promisor.  If 
one  person  volunteers,  without  any  previous  request,  and  with- 
out any  legal  obligation,  to  pay  the  debt  of  a  third  person, 
such  payment  does  not  give  any  right  of  action,  nor  will  it  be 
conferred  by  a  subsequent  promise,  Ingraham  v.  Gilbert^  20 
Barb.  151 ;  Richardson  v.  Williams,  49  Me.  658 ;  Willis  v. 
Hohson,  37  id.  403 ;  Williams  v.  Miller,  1  Wash.  Terr.  105  ; 
Gould  V.  Yillage  of  Phcenix,  3  N.Y.  S.  C.  (T.  &  C.)  797 ;  Eastwood 
V.  Kenyon,  11  Ad.  &  E.  438.  Where  a  parent  is  willing  to  support 
his  infant  child,  and  a  relative,  without  his  request,  but  with  his 
assent,  receives  the  child  into  his  family  and  supports  it  as  a 
child  of  his  own,  no  agreement  on  the  part  of  the  father  can  be 
implied  to  pay  for  such  support,  and  a  subsequent  promise  will 
not  support  an  action.     Chilcott  v.  Trimble,  13  Barb,  502. 

So  the  law  does  not  imply  a  contract  to  pay  for  services  ren- 
dered by  an  infant  who  is  permitted  while  out  of  a  place  to 
reside  with  his  uncle,  and  during  such  time  is  provided  with  food 
and  clothing,  and  who  works  in  the  same  way  as  one  of  the 
children  of  the  family.  Def ranee  v.  Austin,  9  Penn.  St.  309 ; 
Weir  V.  Weir'^s  Admr.,  3  B.  Monr.  645,  647.  Where  an  infant 
goes  from  home,  against  the  wishes,  but  with  the  father' s  con- 
sent, who  paid  his  traveling  expenses,  and  such  infant  is  taken 
sick  while  abroad,  the  father,  who  has  neither  received  his  earn- 
ings, nor  paid  his  expenses,  is  not  liable  for  the  care  and  atten- 
tions bestowed  during  such  sickness.  Johnson  v.  Gibson,  4  E.  D. 
Smith,  231;  Davidson  y.  Davidson,  12  Iowa,  5]  2. 

So  where  the  son  was  of  full  age,  and  was  taken  suddenly  sick 
among  strangers,  who  relieved  him,  and  the  father  subsequently 
promised  to  pay  the  expenses  incurred,  this  was  held  insufficient 
to  sustain  an  action.  Mills  v.  Wyman,  3  Pick.  207.  So  of  a  prom- 
ise by  a  son  to  pay  for  necessaries  previously  furnished  to  a  father. 
Cook  V.  Bradley,  7  Conn.  57.  A  promise  by  a  grandfather  to 
pay  for  services  that  have  been  rendered  to  his  grandson  is  not 
binding.  EUicott  v.  Peterson,  4  Md.  476,  492.  And  no  action 
can  be  maintained  upon  a  note  given  by  a  person  to  an  officer  of 
a  benevolent  society,  for  his  initiation  as  a  member,  and  for  his 
quarterly  dues,  for  the  mere  moral  obligation,  although  coupled 


GENERAL  PRINCIPLES  OF  CONTRACTS.         109 

with  a  written  express  promise,  is  not  sufficient.  Nash  v.  Rus- 
sell, 5  Barb.  556  ;  Geer  v.  Archer,  2  id.  420 ;  ^hle  v.  Judson,  24 
Wend.  97. 

If  there  was  once  a  sufficient  valuable  consideration  upon 
which  an  action  could  have  been  sustained,  but,  in  consequence 
of  some  statute,  or  some  positive  rule  growing  out  of  general 
principles  of  public  policy,  the  party  so  liable  is  exempted  from 
present  liability,  the  moral  obligation  will,  in  such  case,  sup- 
port an  express  promise  upon  which  an  action  will  lie.  As 
familiar  illustrations  of  this  rule,  a  promise  will  revive  a  debt 
barred  by  the  statute  of  limitations;  a  debt  discharged  by  a 
bankrupt  or  an  insolvent  law  ;  a  promise  by  an  adult  to  pay  a 
debt  contracted  during  infancy ;  and  many  other  cases  of  a 
similar  nature.     See  Limitations. 

§  18.  Of  executed  considerations.  Considerations  may  be  of 
the  past,  of  the  present,  or  of  the  future.  In  regard  to  the  time 
when  a  consideration  operates,  it  may  be  executed,  or  something 
already  done  before  the  making  of  the  defendant's  promise;  it 
may  be  executory,  or  something  to  be  done  after  the  promise;  it 
may  be  concurrent,  as  in  the  case  of  mutual  promises  ;  or  it  may 
be  continuing,  as  being  in  one  part  executed,  and  one  part  still 
continuing  or  unexecuted.  A  consideration  which  is  wholly  past 
is  called  an  executed  consideration,  audit  is  not  sufficient  to  sus- 
tain a  promise,  unless  such  past  consideration  arose  at  the 
request,  express  or  implied,  of  the  party  who  promises;  or  unless 
the  person  to  whom  such  promise  is  made  has  been  compelled 
to  pay  some  money,  or  to  do  some  act  in  consequence  of  a  lia- 
bility incurred  at  the  request  of  the  promisor.  If  a  person  ren- 
ders gratuitous  services,  and  a  subsequent  promise  is  made  to 
pay  for  them,  this  will  be  a  past  consideration,  and  the  promise 
not  binding,  ante,  108. 

So  of  a  case  in  which  one  person  voluntarily,  and  without 
previous  request,  pays  the  debt  of  another,  and  no  action  lies 
even  upon  a  subsequent  express  promise,  ante,  107,  §  17.  But 
where  one  person  becomes  a  surety  for  another  at  his  request, 
and  in  consequence  thereof  he  is  compelled  to  pay  the  debt,  he 
may  maintain  an  action  against  the  person  for  whom  he  became 
such  surety,  and  may  recover  the  amount  which  he  was  thus 
compelled  to  pay.  Ritenour  v.  Mathews,  42  Ind.  7;  Wells  v. 
Mann,  45  N.  Y.  (6  Hand)  327;  S.  C,  6  Am.  Rep.  93;  KonitsJcy 
V.  Mayor,  49  N.  Y.  (4  Sick.)  671  ;  Appleton  v.  Bascom,  3  Mete. 


110         GENERAL  PRINCIPLES  OF  CONTRACTS. 

(Mass.)  169;  Eaton  v.  Lairibert,  1  Nebr.  339;  WMtworth  v.  Til- 
man,  40  Miss.  76;  Holmes  v.  Weed,  19  Barb.  128. 

So  it  has  been  held  that  where  one  man  is  compelled  to  pay 
money  which  another  is  bound  by  law  to  pay,  the  law  will 
imj)ly  a  promise  by  the  latter  to  reimburse  the  person  making 
the  payment.  SargeantY.  Currier,  49  N.  H.  310;  S.  C,  6  Am. 
Rep.  524;  Dressor  v.  Ainsworth,  9  Barb.  619;  Hunt  v.  Amidon^ 
4  Hill,  345.  In  the  cases  last  cited,  the  purchasers  of  property 
were  compelled  to  pay  incumbrances  which  existed  at  the  time 
of  the  sale,  but  unknown  to  them,  and  they  were  allowed  to 
recover  the  amount  from  the  vendors.  • 

Where  an  executed  consideration  is  one  from  which  the  law 
will  imply  a  promise,  no  express  promise  made  in  respect  of 
that  consideration  can  be  enforced,  if  it  differs  from  the  promise 
which  the  law  would  imply  from  the  same  consideration.  Hop- 
Mns  V.  Logan,  6  M.  &  W.  241 ;  Rascorla  v.  Thomas,  3  Q.  B. 
234;  Bailey  v.  Bussing,  29  Conn.  1;  ClarTc  v.  Small,  6  Yerg. 
418;  Try  on  v.  Mooney,  9  Johns.  358;  Bloss  v.  Kittridge,  5  Vt. 
28;  Hoggins  v.  Plympton,  11  Pick.  97;  Proctor  v.  Keith,  12  B. 
Monr.  252 ;  2  Am.  Lead.  Cas.  189. 

§  19.  Of  executory  considerations.  An  executory  contract 
relates  to  some  future  act  to  be  done  by  one  or  both  of  the  par- 
ties, but  which  is  yet  unperformed.     See  ante,  74,  art.  2,  §  5. 

An  executory  consideration  generally  constitutes  a  condition 
precedent  which  must  be  performed  by  the  plaintiff  before  a 
right  of  action  can  accrue  in  his  favor;  and  in  his  declaration  or 
complaint,  he  must  allege  such  performance.  See  ante,  102,  § 
11. 

§  20.  Of  concurrent  considerations.  A  concurrent  considera- 
tion is  said  to  arise  in  the  case  of  mutual  promises;  a  promise 
for  a  promise,  being  a  good  consideration.  1  Chit,  on  Cont.  73  ; 
see  ante,  102,  §  11.  In  the  case  of  concurrent  considerations,  the 
plaintiff's  promise  is  executed,  but  the  thing  to  be  performed  by 
him  is  executory.  And,  therefore,  though  the  acts  to  be  done  by 
the  plaintiff  are  not  conditions  precedent,  but  concurrent  with 
those  to  be  done  by  the  defendant,  yet  he  cannot  maintain  an 
action  without  showing  performance,  or  an  offer  on  his  part  to 
perform.  And  it  is  sufficient  to  allege  a  readiness  and  a  willing- 
ness to  perform.  Mount  v.  Lyon,  49  N.  Y.  (4  Sick.)  552;  Coon* 
ley  V.  Anderson,  1  Hill,  519;  Oiles  v.  Giles,  9  Q.  B.  164. 

§  21.  Of  continuing  considerations.  A  continuing  considera- 
tion is  one  which  is  executed  in  part,  but  which  continues. 


GENERAL  PRINCIPLES  OF  CONTRACTS.         Ill 

and  is  in  part  unexecuted.  Andrews  v.  Ives,  3  Conn.  368; 
Loomis  V.  Wewliall,  15  Pick.  159.  Where  A  delivers  money  to 
B  for  the  use  of  C,  and  B  afterward  promises  C  to  pay  it, 
this  is  a  continuing  consideration,  and  the  promise  is  binding. 
Lilly  V.  Hays,  5  Ad.  &  E.  548;  Weston  v.  Barker,  12  Johns.  276. 

To  sustain  an  action  against  the  agent  there  must  be  an  express 
promise  by  him  to  pay  over  the  money  as  directed.  Bigelow  v. 
Dcmis,  16  Barb.  561;  Colvin  v.  Holbrook,  2N.  Y.  (2  Comst.)  126; 
Hall  V.  Lauderdale,  46  N.  Y.  (1  Sick.)  70;  Seaman  v.  Whitney,  24 
Wend.  260. 

§  22.  Failure  of  consideration.  Where  the  consideration  of  a 
contract  totally  fails,  and  what  was  supposed  to  be  a  sufficient 
consideration  proves  to  be  a  nullity  and  of  no  value,  the  contract 
may  be  avoided  by  the  immediate  parties.  Smith  v.  McClusky, 
45  Barb.  610;  Treat  v.  Orono,  26  Me.  217;  Spring  v.  Coffin,  10 
Mass.  34 ;  Sanford  v.  Dodd,  2  Day,  437;  Murray  v.  Garrett,  3 
Call.  (Va.)  373;  Charlton  v.  Lay,  5  Humph.  496;  Colmlle  v. 
Besly,  2  Denio,  139.  And  where  the  consideration  wholly  fails, 
the  party  paying  or  depositing  it  may  recover  it  back.  lb. 

In  contracts  of  sale,  it  is  important  that  the  property  which  is 
the  subject  of  the  contract  should  be  existent,  if  such  was  the 
intention  and  understanding  of  the  parties,  and,  therefore,  if  the 
sale  be  of  animals,  and  they  are  dead;  or  of  property,  and  it  is 
entirely  destroyed,  at  the  time  of  making  the  contract,  this  will 
render  the  contract  void.  Allen  v.  Hammond,  11  Peters,  63; 
Rice  V.  Dmiglit  Manuf.  Co.,  2  Cush.  (Mass.)  80,  86;  Kip  v.  Mon- 
roe, 29  Barb.  579 ;  18  How.  383;  Couturier  v.  Hastie,  5  H.  L.  Cas. 
673.  So  on  a  sale  of  property,  where  the  title  totally  fails,  the 
contract  may  be  rescinded  by  the  purchaser.  Couturier  v.  Has- 
tie, 5  H.  L.  Cas.  673;  Burt  v.  Hewey,  40  N.  Y.  (1  Hand)  283; 
Bordwell  v.  Collie,  45  N.  Y.  (6  Hand)  494  ;  Ledwich  v.  McKim, 
53  N.  N.  (7  Sick.)  307;  Thurston  v.  Spratt,  52  Me.  202. 

§  23.  Impeaching  consideration.  A  party  may  always  show  a 
want  or  a  failure  of  consideration  for  the  purpose  of  invalidating 
a  contract,  with  the  single  exception  of  a  negotiable  promissory 
note,  or  bill  of  exchange,  wliich  has  passed  into  the  hands  of  a 
honafide  holder  for  value,  before  the  bill  or  note  became  due,  in 
which  latter  case  the  want  of  consideration  would  be  no  defense. 

§  24.  Effect  of  a  seal  upon  a  consideration.  At  common  law 
a  party  was  not  permitted  to  show  that  a  sealed  instrument  was 
without  consideration.  In  New  York,  the  statute  declares  that  a 
seal  is  only  presumptive  evidence  of  a  sufficient  consideration, 


112  GENERAL  PRINCIPLES  OF  CONTRACTS. 

whicli  may  be  rebutted  in  the  same  manner,  and  to  the  same 
extent  as  though  it  were  not  sealed.  2  R.  S.  406  (423),  §  77. 
Since  this  statute,  a  sealed  subscription  may  be  impeached  for 
want  of  consideration.  Wilson  v.  Baptist  Education  Society, 
10  Barb.  308.  So  of  a  sealed  note.  Case  v.  Boughton,  11  Wend. 
106.  The  defense  must  be  pleaded.  2  R.  S.  406  (423),  §  78 ;  Fay's 
Administrators  v.  Ricliards,  21  Wend.  626. 


ARTICLE  YIL 

OF   THE   FORMS   OF   CONTRACTS. 

Section  1.  Of  writing  contracts.  In  most  countries,  and  under 
most  systems  of  jurisprudence,  certain  forms  and  solemnities  have 
been  established  for  the  purpose  of  binding  men  finally  and  con- 
clusively to  the  truth  and  good  faith  of  their  acts  and  representa- 
tions, and  for  the  due  authentication  of  contracts.  Add.  on  Cont. 
41.  The  most  formal  and  solemn  instruments  are  those  in  writ- 
ing and  under  seal,  and  their  nature  will  be  fully  explained  under 
such  titles,  as  Deeds,  Mortgages,  Bonds,  Covenants,  and  the  like. 
There  are  also  many  other  forms  of  written  contracts,  not  under 
seal,  such  as  ordinary  contracts  in  writing,  bills  of  exchange, 
checks,  promissory  notes,  and  others  of  a  similar  nature.  But, 
even  where  the  law  requires  a  contract  to  be  in  writing,  it  may 
be  written  in  pencil  marks,  instead  of  ink.  Geary  v.  PJiysic,  5 
B.  &  C.  234,  237 ;  Clason  v.  Bally,  14  Johns.  -484  ;  Draper  v. 
Pattlna,  2  Speers.  (S.  C.)  292.  And  printing  is  writing  within 
the  meaning  of  the  statute.  So,  too,  contracts  may  be  made  by 
means  of  letters  and  telegrams,  ante,  QQ,  87,  art.  5,  §§  5,  6. 

§  2.  Statute  of  frauds.  The  effect  of  the  statute  of  frauds 
upon  contracts  will  be  fully  discussed  elsewhere,  and,  therefore, 
a  mere  reference  to  that  title  is  all  that  is  required  in  this  place. 
See  Sale;  Statute  of  Frauds. 

§  3.  Of  the  contents  of  a  written  contract.  Where  a  contract 
is  reduced  to  writing  it  ought  to  contain  the  entire  terms  and 
conditions  agreed  upon  ;  for,  if  the  law  requires  a  particular 
contract  to  be  in  writing,  and  it  does  not  contain  all  the  terms 
agreed  on,  the  omission  cannot  be  supplied  by  parol  evidence  ; 
and,  if,  on  the  other  hand,  the  law  does  not  require  a  writing, 
but  the  parties  adopt  that  mode,  the  terms  of  the  contract  ought 
to  be  all  inserted,  as  the  legal  presumption  will  be,  that  the 
writing  contains  all  that  was  agreed  upon  between  the  parties, 


GENERAL  PEINCIPLES  OF  CONTRACTS.         113 

and  thus  raising  the  question  whether  parol  evidence  can  be 
given  to  establish  the  matters  so  omitted. 

§  4.  Of  certainty  in  contracts.  Every  contract  ought  to  be  so 
drawn  that  there  is  no  uncertainty  as  to  what  was  intended  to  be 
agreed  upon  between  the  parties.  This  is  important  for  the  pur- 
pose of  avoiding  disputes  as  to  the  terms  and  conditions  inserted, 
and  also,  to  enable  the  court  to  give  a  full  and  correct  construc- 
tion to  the  instrument.  To  constitute  a  valid  oral  or  written 
agreement,  the  parties  must  express  themselves  in  such  terms 
that  it  can  be  ascertained  to  a  reasonable  degree  of  certainty 
what  they  mean.  A  written  agreement  which  does  not  show  who 
are  the  parties  to  it,  is  void  for  uncertainty.  Webster  v.  Ela,  5 
'N.  H.  540.  So,  a  contract  for  a  lease,  which  does  not  show  the 
length  of  the  proposed  term,  is  insufficient.  Bayley  v.  Fits- 
Tnaurice,  8  E.  &  B.  664  ;  9.  H.  L.  Cas.  78.  So,  if  any  agreement 
be  so  vague  and  indefinite,  that  it  is  not  possible  to  collect  from 
it  the  full  intention  of  the  parties  ;  for  neither  court  nor  a  jury 
can  make  an  agreement  for  the  parties.  Whelan  v.  Sullivan, 
102  Mass.  204;  King  v.RucTcman,  5  C.  E.  Green,  316,  359 ;  S.  C, 
6  id.  599  ;  Far  well  v.  Mather,  10  Allen,  322  ;  Aleel  v.  Radcliff, 
13  Johns.  297  ;  Western  TranspoHation  Co.  of  Buffalo  v.  Lan- 
sing, 49  N.  Y.  (4  Sick.)  499,  504,  505. 

§  5.  Signature  to  contract.  In  those  cases  where  some  statute 
requires  a  written  signed  contract,  there  must,  of  course,  be  a 
compliance  with  such  requirements.  But,  in  the  absence  of  any 
statute,  a  contract  in  writing  would  be  incomplete  without  the 
signatures  of  the  proper  contracting  parties.  The  signature 
may  be  written,  or  maybe  printed,  at  the  option  of  the  parties. 
Saunderson  v.  Jackson,  2  B.  &  P.  238;  Sclineider  v.  Morris,  2 
M.  &  S.  286;  Lerned  v.  Wannemaclier,  9  Allen,  416,  417;  or 
stamped  on.     Pitts  v.  Beckett,  13  M.  &  W.  743. 

If  a  statute  requires  a  contract  to  be  subscrihed,  a  printed  sig- 
nature will  not  be  sufficient.     Vielie  v.  Osgood,  8  Barb.  130. 

As  to  signatures  by  telegrams,  see  a7ite,  87,  art.  5,  §  6. 

§  6.  Attestation  of  contracts.  In  those  cases  where  an  attest- 
ing witness  is  required  by  law,  it  will  be  important  to  have  the 
instrument  properly  attested  or  witnessed.  And,  where  such  wit- 
nesses are  required,  it  is  also  necessary  to  call  on  them  to  prove  the 
execution  of  the  instrument.  HolleribecTc  v.  Fleming,  6  Hill,  303 
Story  Y.  Lovett,  1  E.  D.  Smith,  153;  Jones  v.  Underwood,  28  Barb. 
481;  HodnettY.  Smith,  41  How.  190;  10  Abb.  (N.  S.)  86.  Although 
parties  may  be  coAipetent  as  witnesses  in  an  action,  this  does 

Vol.  I.  — 15 


114         GENERAL  PRINCIPLES  OF  CONTRACTS. 

not  dispense  with  the  production  of  the  attesting  witness  when 
this  is  practicable.  lb. 

§  7.  Recording  contracts,  etc.  In  this  country  the  recording  of 
deeds,  mortgages,  and  other  instruments  and  contracts  is  so  uni- 
versal that  it  is  not  usually  overlooked  or  neglected.  The  mode 
and  eflfect  of  recording  the  various  instruments  requiring  it,  will 
be  noticed  in  their  appropriate  places,  under  the  titles  dis- 
cussed. See  Deeds;  Mortgages;  Chattel  Mortgages,  etc.  See  1 
Broom  &  Had.  Com.  769,  Wait's  ed.,  note  381. 


ARTICLE  VIII. 

OF  THE  CONSTRUCTION"  OF  CONTRACTS. 

Section  1.  In  general.  All  contracts  derive  their  force  from 
the  mutual  assent  of  the  parties  to  the  terms  and  conditions 
specified  therein ;  and,  therefore,  it  is  not  only  necessary  to 
interpret  those  terms  for  the  purpose  of  ascertaining  the  inten- 
tion of  the  parties  in  entering  into  the  agreement,  but  also  so  to 
construe  them  as  to  give  legal  effect  and  operation  to  such  in- 
tention. The  importance  of  a  reasonable  and  just  construction 
of  every  instrument  or  contract  is  quite  evident  and  certain. 
So,  too,  it  is  equally  important  that  the  rules  of  construc- 
tion should  be  regulated  by  law,  and  be  governed  by  dis- 
tinct, settled,  principles,  so  that  there  may  be  uniformity 
and  certainty  in  their  application.  When  any  one  particular 
contract  is  properly  construed,  justice  will  be  done  to  the 
parties  directly  interested  in  it.  But,  it  is  essential  that  all 
other  contracts  should  be  construed  by  general  rules  which 
are  uniform,  consistent  and  just.  In  this  way  all  parties  may 
secure  justice  for  themselves  ;  for  they  will  then  know  be- 
forehand the  force  and  effect  of  the  words  or  terms  they  may  use, 
and  can  then  enter  into  contracts,  or  refuse  to  do  so,  or  make  or 
accept  instruments,  as  they  may  judge  it  to  be  for  their  interest. 
To  secure  consistency  and  uniformity  in  the  application  of  rules 
of  construction,  it  is  necessary  that  these  rules  should  be  re- 
garded as  principles  of  law,  and  that  their  construction  and 
application  should  be  confided  to  the  courts,  to  be  dealt  with  as 
a  matter  of  law,  and  not  as  a  question  of  fact. 

§  2.  Construction  of  contracts  is  for  the  court.  As  has  just 
been  stated  it  is  proper  that  the  construction  of  contracts  should 
be  left  to  the  courts  ;  and  such  is  also  the  rule  of  law,  as  it  is 


GENERAL  PRINCIPLES  OF  CONTRACTS.         115 

weU  settled  that  tlie  construction  of  all  contracts  is  for  the  court, 
whether  the  contract  be  sealed  or  unsealed,  written  or  oral. 

That  such  is  the  rule  as  to  written  instruments  or  contracts, 
see  Nash  v.  Drlsco,  51  Me.  417;  Mondnoch  R.  R.  v.  Felt,  62  N. 
H.  379;  Wason  v.  Rowe,  16  Vt.  525;  Smith  v.  Faulkner,  12  Gray, 
251;  McAvoy  v.  Long,  13  111.  147;  Collins  v.  Banlury,  5  Ired. 
118;  Emery  v.  Owings,  6  Gill.  191;  Williams  v.  Waters,  36  Ga. 
454;  State  v.  Lefaime,  53  Mo.  470. 

If  the  contract  be  oral,  and  there  is  a  dispute  as  to  its  terms, 
that  question  is  one  of  fact,  to  be  tried  by  a  jury,  or  by  the  court. 
Ouptill  V.  Damon,  42  Me.  271;  Globe  Worlcs  v.  Wright,  106 
Mass.  216;  Illinois,  etc.  v.  Cassell,  17111.389;  Chapin  v.  Potter^ 
1  Hilt.  366;  Bradbury  y.  Marhury,  12  Ala.  520. 

But,  after  the  terms  of  the  contract  are  thus  settled,  or,  if  they 
are  agreed  upon  by  the  parties,  the  construction  is  then  for  the 
court.  lb.  Pratt  v.  Langdon,  12  Allen,  544;  Fosterman  v. 
Parker,  10  Ired.  477;  Rhodes  y.  Chesson,  Busbee's  Law,  336. 
See  1  Broom  &  Had.  Com.  725,  Wait's  ed.,  note  354. 

§  3.  Construction  when  for  a  jury.  When  the  contract  is  oral, 
and  there  is  a  dispute  as  to  the  terms,  it  is  a  question  of  fact  to 
be  settled  by  a  jury  what  the  agreement  really  was.  See  the 
cases  cited  in  the  last  section,  and  Moore  v.  Garwood,  4  Exch. 
681,  690  ;  Berwick  v.  Horsfall,  4  C.  B.  (N.  S.)  450  ;  Edwards  v. 
Goldsmith,  16  Penn.  St.  43 ;  Guptill  v.  Damon,  42  Me.  271 ; 
Illinois,  etc.,  v.  Cassell,  17  111.  389. 

The  mere  loss  of  a  document,  so  that  parol  evidence  is  admis- 
sible to  prove  its  contents,  does  not  make  the  construction  of 
its  contents  a  question  for  a  jury.  Berwick  v.  Horsfall,  4  C. 
B.  (N.  S.)  450  ;  see  the  cases  cited  in  the  last  section.  But  it  has 
been  held  that  where  the  contents  of  a  written  contract  which  is 
lost  is  proved  by  parol,  without  any  copy,  its  construction  must 
be  determined  by  the  jury.     Moore  v.  Holland,  39  Me.  307. 

The  rule  that  the  construction  of  a  contract  is  for  the  court 
has  an  apparent  exception  in  the  case  of  unusual,  technical  or 
official  words,  when  used  in  a  contract.  If  the  meaning  is  to  be 
obtained  from  experts,  or  from  persons  acquainted  with  the  par- 
ticular art  to  which  these  words  refer,  or  from  authoritative  defi- 
nitions, the  evidence  on  this  point  may  be  conflicting,  and  then 
a  question  is  presented  for  a  jury.  Eaton  v.  Smith,  20  Pick.  150; 
Brown  v.  Orland,  36  Me.  376 ;  Burnham  v.  Allen,  1  Gray, 
496 ;  Taliaferro  v.  Cundiff,  33  Texas,  415.  So  where  the  evi- 
dence of  a  contract  consists  in  part  of  written  evidence,  and 


116         GENEKAL  PEINCIPLES  OF  CONTRACTS. 

in  part  of  oral  communications,  or  other  unwritten  evidence, 
it  is  left  to  tlie  jury  to  determine  upon  the  whole  evidence  what 
the  contract  is.  Edwards  v.  Goldsmith^  IG  Penn.  St.  43 ;  Botti 
eisler  v.  Dohson,  5  Whart.  398 ;  Morrell  v.  Frith,  3  M.  &  W. 
404  ;  Globe  Works  v.  Wright,  106  Mass.  216  ;  MooreY.  Garsvdod, 
4  Exch.  681,  690  ;  Shore  v.  Wilson,  9  CI.  &  Fin.  510. 

§  4.  The  construction  is  the  same  at  law  or  in  equity.  The 
general  rules  or  maxims  which  control  the  interpretation  or  con- 
struction of  contracts  are  the  same  at  law  or  in  equity.  Doe  v. 
Lamping,  2  Burr.  1108 ;  Eaton  v.  Lyon,  3  Ves.  692  ;  Ball  v. 
Storie,  1  Sim.  &  Stu.  210. 

And  there  is  no  difference  in  the  rule,  whether  the  contract  be 
sealed  or  unsealed.  Seddon  v.  Senate,  13  East,  74 ;  Hewett  v. 
Painter^  1  Bulsb.  174,  175  ;  Robertson  v.  French,  4  East,  130  ; 
Kane  v.  Hood,  13  Pick.  281. 

§  5.  The  intention  of  the  parties  controls.  The  object  of  con- 
struction is  to  ascertain  what  the  parties  intended  by  the  terms 
and  expressions  used  in  a  contract,  and  the  courts  will,  so  far  as 
the  rules  of  law  will  permit,  give  effect  to  that  intention.  In  in- 
terpreting a  contract  the  courts  will  endeavor  to  avoid  any  con- 
struction which  does  violence  to  the  rules  of  language,  or  to  the 
rules  of  law.  And,  while  an  effort  will  be  made  to  construe  a 
contract  as  the  parties  understood  it,  and  intended  to  agree,  yet 
the  construction  and  the  effect  given  to  a  contract  must  be  in 
harmony  with  the  law  and  the  general  principles  of  the  language. 
The  words  used  must  not  be  perverted  from  their  proper  signifi- 
cation to  one  entirely  different,  although  it  may  be  evident  that  the 
words  used,  either  through  ignorance  or  inadvertence,  express  a 
meaning  very  different  from  that  intended  by  the  parties.  Thus, 
where  a  contract  relates  to  "  horses,"  the  courts  will  not  construe 
it  to  relate  to  "  oxen,"  even  though  it  might  be  shown  by  parol 
evidence  that  such  was  the  real  intention.  How  far  parol  evi- 
dence is  admissible  in  such  cases  will  be  discussed  in  §  23,  ])ost. 

Generally,  when  the  intent  can  be  distinctly  and  clearly  ascer- 
tained from  the  language  used,  it  will  prevail,  not  only  in  cases  in 
which  it  is  not  fully  and  clearly  expressed,  but  even  where  it  con- 
tradicts particular  terms  of  the  agreement.  The  object  of  the  law,  in 
adopting  rules  of  construction,  is  to  ascertain  the  meaning  of  the 
parties,  and  not  to  declare  or  impose  terms  or  meanings  upon 
them,  and,  therefore,  the  language  or  expressions  made  use  of 
by  them  will  be  subservient  to  the  evident  intention.  Where 
the  terms  of  a  promise  admit  of  more  senses  then  one,  the  prom- 


GENERAL  PRINCIPLES  OF  CONTRACTS.         117 

ise  is  to  be  performed  in  that  sense  which  the  promisor  knew  or 
believed  at  the  time  the  promisee  received  it.  Barlow  v.  Scott^ 
24  N.  Y.  (10  Smith)  40  ;  Gunnison  v.  Bancroft,  11  Vt.  493. 

Temures  promised  the  garrison  of  Sebastia  that  if  they  would 
surrender,  no  blood  should  be  shed.  The  garrison  surrendered, — 
and  Temures  buried  them  all  alive.  Now  Temures  fulfilled  the 
promise  in  one  sense  ;  and,  in  the  sense,  too,  in  which  he  intended 
it  at  the  time  ;  but  not  in  the  sense  in  which  the  garrison  of 
Sebastia  actually  received  it,  nor  in  the  sense  in  which  Temures 
himself  knew  that  the  garrison  received  it ;  which  last  sense 
was  the  one  in  which  he  was,  in  conscience,  bound  to  have  per- 
formed it.  In  construing  a  contract,  the  courts  ought  to  consider 
the  acts  to  be  done  under  it,  and  the  manner  of  performing  them, 
and  then  such  a  construction  should  be  adopted  as  will  give 
effect  to  the  provisions  which  carry  out  the  evident  intent  of  the 
contract ;  and  to  effect  this,  the  entire  contract  should  be  consid- 
ered in  determining  the  meaning  of  any  of  its  parts.  People  v. 
Gosper,  3  Nebr.  285.  Courts,  in  the  construction  of  contracts, 
look  to  the  language  employed,  and  the  surrounding  circum- 
stances. They  are  never  shut  out  from  the  same  light  which 
the  parties  enjoyed  when  the  contract  was  executed,  and  in  that 
view  they  are  entitled  to  place  themselves  in  the  same  situation 
as  the  parties  who  made  the  contract,  so  as  to  view  the  circum- 
stances as  they  viewed  them,  and  so  to  judge  of  the  meaning  of 
the  words,  and  of  the  correct  application  of  the  language  to  the 
things  described.  Rash  v.  Towne,  5  Wall.  (U.  S.)  689,  699  ; 
Ricker  v.  Fairbanks^  40  Me.  43.  If  \kiQ  intent  can  be  clearly 
and  distinctly  ascertained  from  the  language  used,  it  will  prevail, 
not  merely  in  those  cases  where  it  is  not  fully  and  clearly  ex- 
pressed, but  even  where  it  contradicts  particular  terms  of  the 
agreement.  Cooke  v.  Barr,  39  Conn.  296.  Where  the  terms  used 
are  such  as  to  include  other  words  which  denote  the  same  thing, 
then  such  a  construction  may  be  adopted  as  will  carry  into  effect 
the  intention  of  the  parties.  Thus,  the  term  "men"  will  beheld 
to  mean  "mankind,"  and  to  include  "  women  ;  "  and  the  word 
"horse  "  may  be  construed  to  mean  "mares."  State  v.  Dunna- 
vant,  3  Brev.  (S.  C.)  9  ;  see  Pennsylvania  Coal  Co.  v.  Delaware 
&  Hudson  Canal  Co.,  29  Barb.  589  ;  Packard  v.  Hill,  7  Cow. 
434;  5  Wend.  375.  A  construction  that  will  give  an  unlimited  and 
customary  signification  to  every  part  of  a  contract  is  to  be  pre- 
ferred. Rolker  v.  Great  Western  Insurance  Co.,  3  Keyes,  17  ;  4 
Abb.  Ct.  App.  76. 


118         GENERAL  PRINCIPLES  OF  CONTRACTS. 

So  contracts  are  to  be  construed  according  to  the  general  intent 
which  appears  from  the  language  used  in  them.  Morey  v. 
Haman,  10  Vt.  567 ;  Oray  v.  ClarJc,  11  id.  583  ;  Hunter  v.  Miller, 
6  B.  Monr.  612.  ^ 

Where  the  language  of  a  contract  is  such  that  no  doubt  or 
uncertainty  exists  as  to  the  meaning  of  the  terms  used,  parol 
evidence  is  not  admissible  to  show  that  a  different  meaning  was 
intended.  Curtiss  v.  Howell,  39  N.  Y.  (12  Tiff.)  211 ;  Kimball 
V.  Brawner,  47  Mo.  398  ;  Warren  v.  Jones,  51  Me.  146.  And 
if  the  language  is  plain  and  unequivocal,  there  is  no  room  for 
construction,  and  even  though  a  party  may  have  misapprehend- 
ed it,  or  it  may  not  express  his  real  intent,  still  it  must  becarried 
into  effect  according  to  its  plain  meaning.  StroMcker  v.  Farmers' 
BanTc,  6  Penn.  St.  41 ;  Benjamin  v.  McConnell,  4  Gilm.  536 ; 
Secombe  v.  Edwards,  28  Beav.  440 ;  Railroad  Company  v. 
Trimble,  10  Wall.  (U.  S.)  367  ;  Callender  v.  Dinsmore,  55  N.  Y. 
(10  Sick.)  200  ;  Huntington  v.  Dinsmore,  6  N.  Y.  S.  C.  (T.  &  C.) 
195  ;  4  Hun,  66. 

If  mutual  contracts  are  not  fully  and  definitely  expressed,  the 
law  requires  that  such  a  construction  shall  be  put  upon  them  as 
will  secure  equal  and  exact  justice.  Whites  v.  Polk,  36  Texas, 
502. 

§  6.  Situation  of  parties,  and  evidence  of  surrounding  circum- 
stances. To  enable  us  to  arrive  at  the  real  intention  of  the  parties, 
and  to  make  a  correct  application  of  the  words  and  language  of 
the  contract,  to  the  subject-matter,  and  to  the  objects  professed 
to  be  described,  all  the  surrounding  facts  and  circumstances  may 
be  taken  into  consideration.  The  law  does  not  deny  to  the  reader 
the  same  light  and  information  that  the  writer  enjoyed  ;  he  may 
acquaint  himself  with  the  persons  and  circumstances  that  are 
the  subjects  of  the  allusions  and  statements  in  the  writing,  and 
is  entitled  to  place  himself  in  the  same  situation  as  the  party  who 
made  the  contract,  to  view  the  circumstances  as  he  viewed  them, 
and  so  to  judge  of  the  meaning  of  the  words  and  of  the  correct 
application  of  the  language  to  the  things  described.  Share  v. 
Wilson,  9  CI.  &  Fin.  555,  569  ;  Macdonald  v.  Longbottorn,  1  El. 
&  Bla.  987;  Mumford  v.  Getting,  7  C.  B.  (N.  S.)  305;  Carr  v. 
Montefiore,  5  Best  &  Smith,  408 ;  Hurley  v.  Brown,  98  Mass. 
545 ;  Karmuller  v.  Krotz,  18  Iowa,  352 ;  Rose  v.  Roberts,  9 
Minn.  119  ;  McOleary  v.  Edwards,  27  Barb.  239  ;  Dent  v.  North 
American  Steamship  Co.,  49  N.  Y.  (4  Sick.)  390;  Field  v. 
Schricher,  14  Iowa,  119. 


GENERAL  PRINCIPLES  OF  CONTRACTS.         119 

§  7.  Construction  to  be  reasonable.  Every  agreement  or  con- 
tract ought  to  receive  a  reasonable  construction;  and,  if  it  is 
omissive  in  some  particular,  or  if  the  terms  are  not  in  entire  har- 
mon3^  the  true  intent  of  the  parties  is  to  be  carried  into  effect 
when  practicable.  If  a  clause  in  a  contract  is  susceptible  of  two 
different  constructions,  that  one  is  to  be  preferred  which  will 
give  it  some  operation,  rather  than  that  which  will  have  none. 
Archibald  v.  Thomas^  3  Cow.  284 ;  Peckham  v.  Haddock,  36 
111.  38;  Riley  v.  Van7iouto7i,5'M.\^^.  (4  How.)  428;  Evans  y.  San- 
ders, 8  Port.  (Ala.)  497;  Higgins  v.  Wasgatt,  34  Me.  305.  An 
agreement  to  pay  interest  will  be  construed  to  mean  legal  inter- 
est.   Archibald  v.  Thomas,  3  Cow.  284. 

If  no  time  is  specified  for  the  performance  of  a  contract,  the 
law  will  require  that  it  shall  be  performed  within  a  reasonable 
time.  Little  v.  Hobbs,  34  Me.  357;  Warren  v.  Wheeler,  8  Mete. 
(Mass.)  97;  Adams  v.  Adams,  26  Ala.  272;  Luclchart  v.  Ogden, 
30  Cal.  547;  Wright  v.  Maxwell,  9  Ind.  192;  Waterman  v.  But- 
ton, 6  Wis.  265. 

Where  a  note  is  payable  in  specific  articles  without  mention- 
ing any  day  or  place  of  payment,  it  will  be  construed  to  be  pay- 
able on  demand,  and  an  actual  demand  will  be  necessary  before 
suit  brought.  Lobdell  v.  Hopkins,  5  Cow.  516;  Rice  v.  Church- 
ill, 2  Denio,  145;  Durkee  v.  Marshall,  7  Wend.  312;  Cook  v. 
FerraVs  Admrs.,  13  id.  285. 

Where  a  chattel  note  is  payable  in  portable  articles,  on  or 
before  a  specified  day,  but  no  place  of  payment  is  specified,  the 
residence  of  the  creditor  is  the  place  of  payment.  La  Farge  v. 
Rickert,  5  Wend.  187;  Goodwin  v.  Holbrook,  4  id.  377;  Wil- 
mouth  V.  Patten,  2  Bibb  (Ky.),  280.  When  such  note  is  made 
by  a  mechanic,  manufacturer,  merchant  or  producer,  and  the 
note  does  not  specify  any  place  of  payment,  the  general  rule  is, 
that  the  note  is  payable  at  the  shop  of  the  mechanic,  the  manu- 
factory or  warehouse  of  the  manufacturer,  the  store  of  the  mer- 
chant, or  the  farm  of  the  producer.  Lobdell  v.  Hopkins,  5  Cow. 
616;  Rice  v.  Churchill,  2  Denio,  145. 

A  contract  to  do  work  implies  that  the  workman  possesses, 
and  that  he  will  use  reasonable  skill  in  performing  the  work. 
McDonald  v.  Simpson,  4  Ark.  .523  ;  Pastor  v.  Broion,  25  Ga.  24; 
Smith  V.  Nelson,  33  Iowa,  24.  The  foregoing  are  but  a  few  of 
the  numerous  instances  in  which  a  reasonable  construction  of  a 
contract  will  imply  duties,  require  skill  and  care,  and  supply 
evident  omissions. 


120         GENERAL  PRINCIPLES  OF  CONTRACTS. 

§  8.  Coustruction  to  be  liberaL  The  interpretation  and  the 
construction  of  a  contract  ought  to  be  liberal;  and  the  words 
should  be  taken  in  their  common  and  most  comprehensive  sense, 
unless  there  is  something  to  show  that  they  were  meant  to  be 
used  in  a.  sense  more  limited  or  confined.  WMtehouse  v.  Liver- 
pool Gas  Co.,  5  C.  B.  798;  Mallan  v.  May,  13  M.  &  W.  511,  517; 
Davis  V.  Barney,  2  Gill.  &  J.  382;  Slate  v.  Dunnavant,  3  Brev. 
(S.  C.)  9. 

In  construing  contracts,  courts  will  endeavor  to  avoid  what  is 
unequal,  unreasonable  and  improbable,  if  this  can  be  done  con- 
sistently with  the  terms  of  the  contract.  Royallon  v.  Royallon 
&  Woodstock  Turnpike  Co.,  14  Vt.  311. 

The  construction  of  commercial  contracts  is  especially  liberal. 
Belly.  Brueii,  1  How.  (U.  S.)  169;  Lawrence  v.  McCalmont,  2  id. 
426.  A  contract  by  a  manufacturer,  to  make  and  finish  certain 
specified  goods  "as  soon  as  possible,"  means  within  a  reason- 
able time,  due  regard  being  had  to  the  manufacturer's  means, 
his  engagements,  and  the  nature  of  the  articles.  Attwood  v. 
Emery,  1  C.  B.  (N.  S.)  110.  A  promissory  note,  payable 
four  months  after  date,  or  as  soon  as  the  maker  shall  collect  a 
specified  debt  from  B,  is  a  promise  to  pay  at  the  end  of 
four  months  at  all  events,  and  sooner  if  such  debt  shall 
be  sooner  collected.  McCarty  v.  Howell,  24  111.  341.  A  written 
promise  to  pay  as  soon  as  collected  at  A,  etc.,  is  an  absolute 
promise  to  pay  upon  the  expiration  of  a  reasonable  time  for  col- 
lecting the  sum  named.  Uhsdell  v.  Pierson,  22  Mo.  124.  A 
contract  by  a  planter  to  deliver  cotton  raised  by  him,  as  soon  as 
it  could  be  picked  but  and  shipped,  does  not  mean  in  the  short- 
est possible  time  in  which,  by  any  means,  or  upon  any  terms,  it 
could  be  done,  but  that  he  may  employ  the  usual  mode  of  trans- 
portation. Waddell  v.  Reddick,  2  Ired.  L.  (N.  C.)  424.  See 
Streeter  v.  Streeter,  43  111.  155;  Johnson  v.  Chambers,  12  Ind. 
102.  If  an  act  is  to  be  done  on  demand,  it  must  be  done  within 
a  reasonable  time  after  the  demand.  Blackwell  v.  Fosters,  1 
Mete.  (Ky.)  88. 

§  9.  Construction  to  be  favorable.  The  construction  of  a  con- 
tract ought  to  be  favorable,  so  that  it  may  be  maintained  rather 
than  defeated.  Thrall  v.  Neioell,  19  Vt.  202  ;  Brown  v.  Slater, 
16  Conn.  192  ;  Brewer  v.  Hardy,  22  Pick.  376  ;  Rogers  v.  Eagle 
Fire  Co.,  9  Wend.  611 ;  Adams  Y.Adams,  26  Ala.  272. 

A  clause  in  a  contiuct,  which  is  susceptible  of  two  constructions, 
will  be  taken  in  that  sense  which  will  give  it  some  operation, 


GENERAL  PRINCIPLES  OF  CONTRACTS.         121 

instead  of  one  that  will  give  no  effect.  Archibald  v.  Thoraas,  3 
Cow.  284 ;  Hunter  v.  Anthony,  8  Jones'  L.  (N.  C.)  385;  Peckham 
V.  Haddock,  86  111.  38  ;  Lynch  v.  Living ston,  8  Barb.  463  ;  6  N. 
Y.  (2  Seld.)  422 ;  Emns  v.  Sanders,  8  Port.  (Ala.)  497. 

If  one  construction  of  a  contract  will  render  it  illegal,  and 
another  will  make  it  valid,  the  latter  will  be  preferred.  Merrill 
V.  Melchoir,  30  Miss.  516  ;  Chittenden  v.  French,  21  111.  598 ; 
Archibald  v.  TJiomas,  3  Cow.  284  ;  Thrall  v.  Newell,  19  Vt.  202; 
Riley  v.  Yanhouten,  4  How.  (Miss.)  428  ;  Olcott  v.  Tioga  H.  R. 
Co.,  27  N.  Y.  (13  Smith)  546  ;  Patrick  v.  Grant,  14  Me.  233. 

A  party  who  takes  an  agreement  prepared  by  another,  and 
upon  its  faith  incurs  obligations  or  parts  with  property,  should 
have  a  construction  given  to  the  instrument  favorable  to  himself. 
Noonan  v.  Bradley,  9  Wall.  (U.  S.)  394. 

§  10.  Words  construed  according  to  their  popular  sense.  The 
construction  to  be  given  to  a  contract  is  that  which  is  the  plain, 
clear,  and  obvious  result  of  the  terms  used  in  it ;  and  these  terms 
are  to  be  understood  in  their  plain,  ordinary,  and  popular  sense. 
Hawes  v.  Smith,  12  Me.  429  ;  Mansfield,  etc.,  R.  R.  Co.  v.  Yeeder, 
17  Ohio,  385;  Mc  Williams  v.  Martin,  12  Serg.  &  R.  260;  Lowber 
V.  LeRoy,  2  Sandf.  (N.  Y.)  202 ;  Goosey  v.  Goosey,  48  Miss.  210. 

If  words  have  acquired  a  particular  meaning,  distinct  from 
the  popular  sense  of  the  same  words,  they  may,  in  some  cases, 
be  understood  in  the  particular  sense,  if  that  is  necessary  to  give 
effect  to  the  intention  of  the  parties.  lb.  Findley  v.  Findley,  11 
Gratt.  (Va.)  434. 

In  construing  words,  the  general  rule  is,  to  prefer  the  compre- 
hension to  the  restricted,  the  general  to  the  particular,  and  the 
common  to  the  unusual  sense. 

§  11.  Technical  words,  how  construed.  Where  a  contract  relates 
or  refers  to  principles  of  science,  or  art,  or  use,  the  technical 
phraseology  of  some  profession,  occupation,  or  common  words 
in  a  technical  sense,  or  the  words  of  a  foreign  language,  their 
true  and  precise  meaning  may  be  shown  by  the  evidence  of 
experts,  or  persons  who  possess  competent  knowledge  and  skill 
for  that  purpose.  Share  v.  Wilson,  9  Clark  &  Fin.  511 ;  Cabarga 
V.  Seeger,  17  Penn.  St.  514  ;  Sheldon  v.  Babcock,  4  Hill,  129  ; 
Dana  v.  Fiedler,  12  N.  Y.  (2  Kern.)  40. 

If  the  evidence  of  the  experts  is  conflicting,  or  uncertain,  the 
meaning  of  the  words  will  be  for  the  jury,  but  their  construction 
for  the  court,  ante,  114,  §  2.  "  The  rule  is  that  words,  or  forms  of 
expression  which  are  not  of  universal  use,  but  are  purely  local 

Vol.  L  — 16 


122         GENERAL  PRINCIPLES  OF  CONTRACTS. 

or  technical,  ma}'-  be  explained  by  parol  evidence,  and  the  same 
is  true  of  words  or  phrases  having  two  meanings,  one  common 
and  universal,  and  the  other  peculiar,  technical  or  local.  In 
such  case  parol  evidence  may  be  given  of  facts  tending  to  show 
in  which  sense  the  words  were  used.  Where  characters,  marks 
or  technical  terms  are  used  in  a  particular  business,  unintel- 
ligible to  persons  unacquainted  with  such  business,  and  occur 
in  a  written  instrument,  their  meaning  may  be  explained  by 
parol  evidence,  if  the  explanation  is  consistent  with  the  terms  of 
the  contract."  Callender  v.  Dinsmore,  55  N.  Y.  (10  Sick.)  200, 
205,  206  ;  Barnard  v.  Kellogg,  10  Wall.  383. 

In  mercantile  contracts  the  words  used  may,  by  usage,  bear  a 
meaning  very  different  from  their  natural  one  ;  and  such  mean- 
ing may  be  made  matter  of  evidence;  and  it  is  for  this  reason  that 
mercantile  contracts  are  to  be  construed  according  to  the  usage 
and  custom  of  merchants  ;  and  when  such  contracts  contain 
peculiar  expressions  which  have,  in  particular  places  or  trades, 
a  known  meaning  attached  to  them,  it  is  for  the  jury  to  say  what 
the  meaning  of  these  expressions  is,  although  it  is  for  the  court 
to  decide  what  is  the  meaning  of  the  contract.  1  Chit,  on  Cont.  116; 
aiite,  114, 115,  §§  2, 3;  Baton  v.  Smith,  20  Pick.  150;  Smith  v.  Faulk- 
ner, 12  Gray,  255,  256;  BohinsonY.  FisJce,  25  Me.  405;  Wayne  v. 
Steamboat  General  Pike,  16  Ohio,  421 ;  Brooks  v.  Cotton,  48 
N.  H.  50 ;  S.  C,  2  Am.  Rep.  172. 

Technical  rules  of  construction  are  not  to  be  resorted  to  where 
the  meaning  of  the  parties  is  obvious.  Noyes  v.  Nichols,  28  Yt. 
159. 

§  12.  The  construction  is  to  be  upon  the  whole  contract.  In 
construing  a  contract,  much  light  will  be  thrown  upon  tlie  subject 
when  the  object  and  intent  of  the  parties  have  been  ascertained. 

The  parties  make  the  contract,  and  it  may  be  assumed  that 
they  had  the  same  purpose  and  object  in  view  in  the  whole  of  it ; 
and,  if  this  purpose  is  more  clear  and  certain  in  some  parts  than 
in  others,  those  which  are  obscure  may  be  illustrated  and  ex- 
plained by  the  light  of  the  other  terms.  And  this  is  the  reason 
for  the  rule,  that  the  exposition  or  construction  of  a  contract  is 
to  be  upon  the  entire  contract,  in  all  its  parts  and  terms,  and  not 
upon  separate  and  disjointed  portions  of  it.  Washburn  v.  Gould, 
8  Story,  122,  162;  Chase  v.  Bradley,  26  Me.  531 ;  Gray  v.  Clark, 
11  Vt.  583;  Warren  v.  Merrijield,  8  Mete.  (Mass.)  96;  McNairy 
V.  Thompson,  1  Sneed,  141  ;  Kelly  v.  Mills,  8  Ohio,  325;  S_pring- 
steen  v.  Samson,  32  N.  Y.  (5  Tiff.)  703 ;  Barnum  v.  Thurston, 


GENERAL  PRINCIPLES  OF  CONTRACTS.  123 

17  Md.  470 ;  Rose  v.  Roberts,  9  Minn.  119 ;  Stewart  v.  Lang,  37 
Penn.  St.  201 ;  Swisher  v.  Orumhles,  18  Texas,  164. 

If  a  contract  is  made  up  of  several  instruments  executed  at 
the  same  time  and  relating  to  the  same  matter,  they  are  to  be 
construed  together  as  forming  parts  of  one  contract.  Salmon 
Falls  Manvf.  Go.  v.  Portsmouth  Co.,  46  N.  H.  249 ;  Stacey  v. 
Randall,  17  111.  467;  Rogers  v.  Smith,  47  N.  Y.  (2  Sick.)  324; 
Gordray  v.  Mordecai,  2  Rich.  (S.  C.)  518  ;  Wallis  v.  Beauchamp, 
15  Texas,  303 ;  Strong  v.  Barnes,  11  Vt.  221 ;  Sewall  v.  Henry, 
9  Ala.  24. 

The  rule  is  the  same  where  such  instruments  are  executed  at 
different  times.  lb.  YanHaganY.Van  Rensselaer,  18  Johns.  420; 
Adams  v.  Hill,  16  Me.  215  ;  Logan  v.  Tibbott,  4  Green  (Iowa), 
389. 

The  court  will  read  several  papers  in  such  order  of  time  and 
priority  as  will  carry  into  effect  the  intention  of  the  parties. 
Newhall  v.  Wright,  3  Mass.  128  ;  Whitehurst  v.  Boyd,  8  Ala. 
375. 

From  the  mere  fact  that  two  instruments  were  executed  by  the 
same  parties,  on  the  same  day,  it  does  not  necessarily  follow  that 
they  were  both  executed  at  the  same  time,  and  were  a  part  of 
the  same  transaction.  Mann  v.  WithecTc,  17  Barb.  388.  And 
though  several  instruments  are  executed  at  the  same  time,  they 
ought  not  to  be  construed  together  unless  they  are  between  the 
same  parties.     Graig  v.  Wells,  11  N.  Y.  (1  Kern.)  315. 

In  ascertaining  the  object  of  the  contract,  and  the  intention  of 
the  parties,  not  only  will  the  entire  contract  be  considered,  but 
one  clause  in  the  contract  may  be  used  for  the  interpretation  of 
another.  Morey  v.  Homan,  10  Vt.  565 ;  Chase  v.  Bradley,  26 
Me.  531;  Heywood  v.  Perrin,  10  Pick.  230;  Colhs  v.  Fouritain, 
3  Rand.  (Va.)  487;  Williamson  v.  McGlure,  37  Penn.  St.  402; 
T^acy  V.  Ghicago,  24  111.  500. 

§  13.  Inconsistent  clauses.  It  has  been  held,  that,  as  a  gen- 
eral rule,  where  the  clauses  of  an  instrument  are  repugnant  and 
incompatible,  the  earlier  one  prevails  in  deeds  and  other  instru- 
ments between  living  persons,  where  the  inconsistency  is  not  so 
great  as  to  render  the  instrument  void  for  uncertainty.  Mott  v. 
Richtmyer,  57  N.  Y.  (12  Sick.)  49,63;  Harvey  y.  Mitchell,  31  N. 
H.  575  ;  Abbott  v.  Abbott,  53  Me.  360,  361 ;  Lippett  v.  Kelley,  46 
Vt.  516;  Doane  v.  Willcuit,  16  Gray,  368,  371;  Law  v.  Hemp' 
stead,  10  Conn.  23;  Bass  v.  Mitchell,  22  Texas,  285,  294;  Jacli- 
son  V.  Clark,  7  Johns.  217;  Goosey  v.  Goosey,  48  Miss.  210. 


124         GENERAL  PRINCIPLES  OF  CONTRACTS. 

Where  the  language  used  by  the  parties  to  a  contract  is 
indefinite  and  ambiguous,  and,  hence,  of  doubtful  construction, 
the  practical  interpretation  by  the  parties  themselves  is  entitled 
to  great,  if  not  controlling,  influence.  Chicago  v.  Sheldon,  9 
Wall.  (U.  S.)  50. 

§  14.  Against  grantor,  promisor,  etc.  Where  the  words  or 
terms  used  are  doubtful  or  ambiguous,  they  are  construed  or 
taken  most  strongly  against  the  person  who  gives  or  undertakes, 
or  enters  into  an  obligation.  Deblois  v.  Earle,  7  R.  I.  26;  Pilce 
V.  Munroe,  36  Me.  309 ;  Mills  v.  Catlin,  22  Yt.  98 ;  Jaclison  v. 
Blodgett,  16  Johns.  172;  Charles  MlTier  Bridge  v.  Warren  Bridge, 
11  Peters,  589;  Evans  v.  Saunders,  8  Port.  .(Ala.)  497.  Where 
doubt  exists  as  to  the  construction  of  an  instrument  prepared 
by  one  party,  upon  the  faith  of  which  the  other  party  has  in- 
curred obligations  or  parted  with  his  property,  that  construction 
should  be  adopted  which  will  be  favorable  to  the  latter  party; 
and  where  an  instrument  is  susceptible  of  two  constructions  — 
the  one  working  injustice  and  the  other  consistent  with  the  right 
of  the  case  —  that  one  should  be  favored  which  upholds  the 
right.  Noonan  v.  Bradley,  9  Wall.  (U.  S.)  395,  407;  Barney  v. 
Newcomb,  9  Cush.  (Mass.)  46. 

Where  the  language  of  a  promisor  may  be  understood  in  more 
senses  than  one,  it  is  to  be  interpreted  in  the  sense  in  which  he 
knew  or  had  reason  to  suppose  it  was  understood  by  the  promi- 
see. Hoffman  v.  Mtna  Ins.  Co.,  32  N.  Y.  (5  Tiif.)  405,  413 ;  Bar- 
low V.  Scott,  24  N.  Y.  (10  Smith)  40. 

But  a  party  is  not  bound  to  do  acts  not  contracted  for,  merely 
because  he  kinew  that  the  other  party  expected  and  understood 
he  would  perform  them.  Johnson  v.  Sellers,  33  Ala.  265.  And 
the  understanding  or  intention  of  a  party  to  a  contract  does  not 
in  all  cases  limit  his  liability.  White  v.  Van  Horn,  19  Iowa,  189. 
In  the  absence  of  fraud,  a  party  is  bound  by  his  written  agree- 
ment, notwithstanding  he  may  have  misapprehended  the  legal 
effect  of  it.  Strohecker  v.  Farmers'*  Bank,  6  Penn,  St.  41 ; 
Holmes  v.  Hall,  8  Mich.  66. 

The  rule  that  the  words  of  an  instrument  are  to  be  taken  most 
strongly  against  the  grantor,  is  one  of  last  resort,  and  is  appli- 
cable only  where  the  language  used  will  equally  admit  of  either 
of  two  or  more  interpretations.  Falley  v.  Giles,  29  Ind.  1 14 ; 
Adams  v.  Warner,  23  Vt.  411,  412 ;  Palmer  v.  Warren  Ins.  Co., 
1  Story,  369.  The  folly  or  the  wisdom  of  the  contract  as  one  or 
another  construction  might  be  placed  upon  its  terms,  is  a  dan- 


GENERAL  PRINCIPLES  OF  CONTRACTS.         125 

gerous  element  to  introduce  into  the  interpretation  of  agreements. 
Lowber  v.  Le  Roy,  2  Sandf.  202,  220. 

The  words  of  a  contract  are  not  only  to  be  taken  most  strongly 
against  the  party  using  them,  but  he  is  not  allowed  to  punctuate 
the  writing  so  as  to  affect  his  liability.  White  v.  Smith,  33  Penn. 
St.  186. 

§  15.  General  words.  General  words  may  be  aptly  restrained 
according  to  the  subject-matter,  or  persons  to  which  they  relate. 
Broom's  Leg.  Max.  646.  In  construing  the  words  of  any  instru- 
ment, then,  it  is  proper  to  consider  :  1st.  What  is  their  mean- 
ing in  the  largest  sense  which,  according  to  the  common  use  of 
language,  belongs  to  them?  and,  if  it  should  appear  that  that 
sense  is  larger  than  the  sense  in  which  they  must  be  understood 
in  the  instrument  in  question,  then,  2ndly.  What  is  the  object 
for  which  they  are  used  ?  They  ought  not  to  be  extended  beyond 
their  ordinary  sense  in  order  to  comprehend  a  case  within  their 
object,  for  that  would  be  to  give  effect  to  an  intention  not  ex- 
pressed ;  nor  can  they  be  so  restricted  as  to  exclude  a  case  both 
within  their  object  and  within  their  ordinary  sense,  without  vio- 
lating the  fundamental  rule,  which  requires  that  effect  should  be 
given  to  such  intention  of  the  parties  as  they  have  used  fit  words 
to  express.  Id.  648;  Borradaile  v.  Hunter,  5  Man.  &  Grang.  639, 
653  ;  S.  C,  5  Scott  (N.  R.),  431,  432.  In  all  written  instruments, 
whether  public  or  private,  general  and  unlimited  terms  are  re- 
strained and  limited  by  particular  recitals  made  in  connection 
therewith.  Yaughan  v.  Porter,  16  Vt.  "ZQQ;  Baxter  v.  State,  9 
Wis.  38,  45;  Torrance  v.  McBougald,  12  Ga.  526. 

§  16.  Grammatical  rules  how  applied.  Every  contract  or  instru- 
ment in  writing  ought  to  be  grammatically  written,  and  should 
be  construed  according  to  the  rules  of  grammar.  This,  however, 
is  not  strictly  a  rule  of  law,  for  it  is  a  principle  of  law  that  bad 
grammar  does  not  vitiate  an  instrument.  The  grammatical  con- 
struction is  not  always,  in  judgment  of  law,  to  be  followed  ;  and 
neither  false  English,  nor  bad  Latin,  will  make  void  a  deed, 
when  the  meaning  of  the  party  is  apparent.  Broom's  Leg.  Max. 
686.  However  plain  the  grammatical  construction  of  a  sentence 
may  be,  if  it  be  clear  from  the  contents  of  the  instrument  that 
the  apparent  grammatical  construction  cannot  be  the  true  one  ; 
then  that  which,  upon  the  whole,  is  the  true  meaning  shall  pre- 
vail, in  spite  of  the  grammatical  construction  of  such  particular 
sentence.  Waugh  v.  Middleton,  8  Exch.  352,  357 ;  Morey  v. 
Roman,  10  Vt.  565.    The  general  rule  is,  that  all  relative  words 


126         GENERAL  PRINCIPLES  OF  CONTRACTS. 

are  read  as  referring  to  the  nearest  antecedent.  But,  in  ascer- 
taining the  meaning  of  a  sentence,  reference  is  not  always  to  be 
made  to  the  next  antecedent,  or  to  the  next  subsequent,  but  re- 
gard is  to  be  had  to  the  subject-matter.  Nettleton  v.  BiUings, 
13  N.  H.  446  ;  Gray  v.  Clark,  11  Vt.  583  ;  OJmrcMll  v.  Reamer, 
8  Bush  (Ky.),  256,  260,  261.  In  construing  an  instrument  which 
was  badly  written  and  punctuated,  the  court,  in  one  case,  inserted 
a  period,  and  made  what  was  written  as  one  sentence,  read  as 
two  sentences.  English  v.  McNalr,  34  Ala.  40  ;  Denny,  in  re, 
8  Ir.  R.  Eq.  427.  A  contract  is  to  be  construed  by  the  words  in 
which  it  is  written  ;  and  punctuation  may  aid  in  ascertaining  its 
true  meaning,  but  cannot  be  used  to  effect  an  alteration  in 
the  sense  of  the  words.  White  v.  Smith,  33  Penn.  St.  186 ; 
Churchill  v.  Reamer,  8  Bush  (Ky.),  256,  260.  Punctuation  is  a 
most  fallible  standard  by  which  to  interpret  a  writing  ;  it  may 
be  resorted  to  when  all  other  means  fail ;  but  the  court  will  first 
take  the  instrument  by  its  four  corners  in  order  to  ascertain  its 
true  meaning  ;  if  that  is  apparent,  on  judicially  inspecting  tlie 
whole,  the  punctuation  will  not  be  suffered  to  change  it.  Ewing 
V.  Burnett,  11  Peters,  41,  54.  As  to  the  punctuation  of  statutes, 
see  1  Broom  &  Hadley's  Com.  78,  note  51,  Wait's  ed. 

§  17.  Transposition  of  words  or  clauses.  It  is  sometimes  nec- 
essary to  transpose  words  or  clauses  in  giving  construction  to  a 
writing,  for  the  purpose  of  determining  the  actual  intention  of 
the  parties.  And,  in  such  cases,  it  is  not  material  in  what  part 
of  the  instrument  any  clause  is  written,  as  it  will  be  read  as  of 
any  place  or  context  for  the  purpose  of  effectuating  the  meaning 
and  intent  of  the  parties.  This,  however,  will  not  be  done  in 
any  case  except  where  the  certain  and  evident  intent  of  the  par- 
ties requires  it.  Where  the  language  of  an  instrument  is  neither 
uncertain  nor  ambiguous,  it  is  to  be  expounded  according  to  its 
apparent  import ;  and  it  is  not  to  be  warped  from  the  ordinary 
meaning  of  its  terms,in  order  to  harmonize  it  with  uncertain  sup- 
positions, in  regard  either  to  the  probable  intention  of  the  parties 
contracting,  or  to  the  probable  changes  which  they  would  have 
made  in  their  contract,  had  they  foreseen  certain  contingencies. 
1  Story  on  Cont.  §  780.  In  giving  construction  to  a  particular 
clause  in  an  agreement,  it  is  proper  to  consider  the  situation  and 
relation  of  the  parties,  the  subject-matter  of  the  contract,  and 
all  the  other  provisions  of  the  agreement.  Williamson  v. 
McClure,  37  Penn.  St.  402  ;  Tracy  v.  Chicago,  24  111.  600. 


GENERAL  PRINCIPLES  OF  CONTRACTS.  127 

§  18.  Presumptions  in  relation  to  contracts.  It  is  tlie  policy  of 
the  law  to  sustain  all  fair,  just  and  legal  contracts  ;  and,  there- 
fore, where  there  is  a  doubt  whether  a  particular  contract  is 
legal  or  illegal,  a  preference  will  be  given  to  that  construction 
which  will  render  it  legal,  when  that  construction  is  consistent 
with  the  entire  language  and  terms  of  such  contract.  ArcMhald 
V.  Thomas,  3  Cow.  284;  Chittenden  v.  French,  21  111.  598; 
Merrill  v.  Melchoir,  30  Miss. 516.  Persons  are  presumed  to  have 
acted  legally  in  making  a  contract,  until  the  contrary  is  shown. 
Tucker  v.  Streetman,  38  Texas,  71. 

§  19.  Contracts  partly  printed,  and  partly  written.  Where  an 
instrument  is  partly  printed  and  partly  written,  the  latter  portion 
will  be  preferred  to  the  former,  where  there  is  a  discrepancy  or 
contradiction  between  the  two  parts.  Harper  v.  Albany  Mutual 
Ins.  Co.,  17  N.  Y.  (3  Smith)  194 ;  American  Express  Co.  v.  Pinc'k- 
ney,  29  HI.  392 ;  Howard  Fire  Ins.  Co.  v.  Bruner,  23  Penn.  St. 
50;  Moore  v.  Perpetual  Ins.  Co.,  16  Mo.  98. 

Printed  blank  forms  which  are  intended  to  be  subsequently 
filled  up  by  writing  are  in  common  and  extensive  use,  as  in  the 
case  of  insurance  policies,  and  in  such  cases  the  written  part 
prevails.  lb.  It  is  clear  in  such  cases  that  what  is  printed  is 
intended  to  apply  to  large  classes  of  contracts,  and  not  to  any 
one  exclusively  ;  and  the  blank  spaces  are  left  for  the  purpose 
of  giving  room  for  the  insertion  of  special  statements  or  provis- 
ions, which  may  relate  to  or  affect  particular  contracts  subse- 
quently entered  into.  In  giving  construction  to  such  contracts 
the  courts  assume  that  the  attention  of  the  parties  was  more  par- 
ticularly called  to  that  portion  of  it  which  is  in  writing,  than  to 
the  general  expressions  of  the  printed  part.  Weisser  v.  Mait- 
land,  3  Sandf.  318,  322  ;  Woodruff  v.  Commercial  Mut.  Ins.  Co., 
2  Hilt.  122. 

The  rule  that  written  prevails  over  printed  matter  applies  to 
other  transactions  than  contracts.  An  elector  who  uses  a  printed 
ballot  and  writes  upon  it  the  name  of  a  candidate  as  a  substitute 
for  the  printed  name,  will  be  deemed  to  have  intended  to  vote 
for  the  person  whose  name  is  thus  written,  even  though  the 
printed  name  be  not  erased.  People  v.  Saxton,  22  N.  Y.  (8 
Smith)  309. 

§  20.  Effect  of  custom  or  usage.  Custom  sometimes  has  an 
influence  upon  contracts.  But  custom  and  usage  are  not  to  be 
considered  as  the  same  things.  Custom  is  the  thing  to  be  proved, 
and  usage  is  the  evidence  by  which  the  existence  of  the  custom 


128         GENERAL  PRINCIPLES  OF  CONTRACTS. 

is  establislied.  Whether  a  custom  exists  is  a  question  of  fact.  But, 
in  the  proof  of  this  matter  of  fact,  questions  of  law  of  two  kinds 
may  arise.  One  is,  whether  the  evidence  offered  is  admissible, 
which  is  to  be  settled  by  the  common  principles  of  the  law  of 
evidence.  The  other  is,  whether  the  facts  stated  or  proved  are 
sufficient  in  law  to  establish  the  existence  of  a  custom.  No  cus- 
tom can  be  proved  or  permitted  to  influence  the  construction  of  a 
contract,  or  to  vary  the  rights  of  the  parties,  if  the  custom  itself 
be  illegal.  And  a  custom  can  no  more  be  set  up  against  the  clear 
intention  of  the  parties,  than  it  could  against  their  express  agree- 
ment. "  The  proper  office  of  a  custom  or  usage  in  trade  is  to 
ascertain  and  explain  the  meaning  and  intention  of  the  parties 
to  a  contract,  whether  written  or  in  parol,  which  could  not  be 
done  without  the  aid  of  this  extrinsic  evidence.  It  does  not  go 
beyond  this,  and  is  used  as  a  mode  of  interpretation  on  the  theory 
that  the  parties  knew  of  its  existence,  and  contracted  with  refer- 
ence to  it.  It  is  often  employed  to  explain  words  or  phrases  in 
a  contract  of  doubtful  signiflcation,  or  which  may  be  understood 
in  different  senses,  according  to  the  subject-matter  to  which  they 
are  applied.  But  if  it  be  inconsistent  with  the  contract,  or 
expressly  or  by  necessary  implication  contradicts  it,  it  cannot  be 
received  in  evidence  to  affect  it."  Per  Davis,  J.  Barnard  v 
Kellogg,  10  Wall.  383,  390;  Callender  v.  Dlnsmore,  55  N.  Y. 
(10  Sick.)  200,  208  ;  Kimlall  v.  Browner,  47  Mo.  398. 

The  object  or  office  of  custom  or  usage  is  not  to  contradict  the 
terms  of  a  contract,  but  to  furnish  an  explanation  of  what  would 
otherwise  be  an  insufficiently  expressed  intention  of  the  parties. 
And  custom  or  usage  may  be  proved,  not  only  to  explain  the 
meaning  of  terms  to  which  a  peculiar  and  technical  meaning  is 
thus  affixed,  but  also  to  supply  evidence  of  the  intentions  of 
the  parties  in  respect  to  matters  with  regard  to  which  the  con- 
tract itself  affords  a  doubtful  indication,  or  perhaps  no  indica- 
tion whatever.  Hutton  v.  Wai'ren,  1  Mees.  «fe  Wela.  475.  And, 
therefore,  an  established  and  well  known  custom  may  add  to  a 
contract  terms  or  stipulations  not  contained  in  it ;  on  the  ground 
that  the  parties  may  be  supposed  to  have  had  them  in  their 
minds  as  a  part  of  their  agreement,  when  they  put  upon  paper  or 
expressed  in  words  the  other  part  of  it.  lb.  Lanib  v.  Klaus,  30 
Wis.  94.  AVhere  a  custom  or  usage  is  not  a  general  one,  or  is 
one  not  generally  known,  it  will  not  be  intended  that  the  parties 
contracted  with  reference  to  it.  And  before  a  custom  or  usage 
will  be  permitted  to  affect  or  control  the  terms  of  a  contract, 


GENERAL  PRINCIPLES  OF  CONTRACTS.         129 

such  custom  or  usage  must  be  so  far  establislaed,  and  so  far 
known  to  the  parties,  as  to  render  it  probable  that  their  contract 
was  made  in  reference  to  it.  Slpperly  v.  Stewart,  50  Barb.  62 ; 
Gallup  V.  Lederer,  1  Hun,  282  ;  S.  C,  3  N.  Y.  S.  C.  (T.  &  C) 
710  ;  Farmers  &  Mechanics'  National  Bank,  etc.,  v.  Sprague,  52 
N.  Y.  (7  Sick.)  605  ;  Walls  v.  Bailey,  49  N.  Y.  (4  Sick.)  464  ;  S.  C, 
10  Am.  Rep.  407.  To  render  a  custom  or  usage  of  trade  valid 
and  binding,  it  must  be  known,  certain,  uniform,  reasonable,  and 
not  contrary  to  law.  Basseti  v.  Lederer,  1  Hun,  274 ;  S.  C,  3  N. 
Y.  S.  C.  (T.  &  C.)  671 ;  Barnard  v.  Kellogg,  10  Wall.  383 ; 
Chenery  v.  Ooodricli,  106  Mass.  566  ;  South  Western  Freight  Co. 
V.  Stanard,  44  Mo.  77. 

A  clear,  certain  and  distinct  contract  is  not  liable  to  modifica- 
tion by  proof  of  custom.  Simmons  v.  Law,  4  Abb.  Ct.  App.  241; 
S.  C,  3  Keyes,  217 ;  The  Reeside,  2  Sumn.  567. 

A  custom,  to  be  controlling,  must  be  general,  not  narrow, 
local,  and  confined,  nor  the  mere  opinion  of  a  few  persons. 
Rogers  v.  Mechanics''  Lns.  Co.,  1  Story,  606  ;  Renner  v.  Bank 
of  Columbia,  9  Wheat.  581 ;  Child  v.  Sun  Mutual  Lns.  Co.,  3 
Sandf.  26 ;  Taunton  Copper  Co.  v.  Merchants''  Lns.  Co.,  22  Pick. 
108 ;  Austin  V.  Crawford,  7  Ala.  335 ;  Weber  v.  Kingsland,  8 
Bosw.  415.  So  it  must  be  definite  and  certain,  not  vague,  un- 
certain and  indefinite.  Oelrlcks  v.  Ford,  2^  How.  (U.  S.)  49  ; 
Bassett  v.  Lederer,  1  Hun,  274  ;  S.  C,  3  N.  Y.  S.  C.  (T.  &  C.) 
671.  It  must  be  uniform,  not  fluctuating,  and  occasional.  Cope 
V.  Dodd,  13  Penn.  St.  33  ;  United  States  v.  Buchanan,  8  How. 
(U.  S.)  83,  102 ;  Lawrence  v.  McGregor,  Wright,  193.  It  must 
be  reasonable.  Bowen  v.  Stoddard,  10  Mete.  (Mass.)  380  ;  Jor- 
dan v.  Meredith,  3  Yeates,  318 ;  Browning  v.  Long  Island  R. 
R.  Co.,  2  Daly,  117. 

A  custom  or  usage  which  is  illegal,  or  one  that  violates  the 
provisions  of  a  statute,  cannot  be  enforced.  JVew  York  Firemen 
Ins.  Co.  V.  Fly,  2  Cow.  678  ;  Perkins  v.  Franklin  Bank,  21  Pick. 
483.  Proof  of  a  local  usage  in  a  particular  trade  is  not  admis- 
sible to  control  the  rules  of  law  upon  the  subject.  Hlggins  v. 
Moore,  34  N.  Y.  (7  Tiff.)  417 ;  Groat  v.  Gile,  51  N.  Y.  (6  Sick.)  431. 

§  21.  Of  the  law  of  place.  It  may  be  stated  as  a  general  rule, 
that  a  contract  which  is  valid  by  the  law  of  the  place  where  it 
is  made  is  valid  everywhere ;  and,  on  the  other  hand,  if  it  is 
void  or  illegal  by  the  law  of  the  place  where  it  is  made,  it  is  void 
everywhere.  Gassett  v.  Godfrey,  26  N.  H.  415  ;  Bank  of  United 
States  V.  Donnally,  8  Peters,  361 ;  Pear  sail  v.  Dwight,  2  Mass. 

Vol.  L  — 17 


130  GENERAL  PRINCIPLES  OF  CONTRACTS. 

88 ;  Smith  v.  Mead^  3  Conn.  253 ;  IIougTitaling  v.  Ball,  20  Mo. 
536 ;  Evans  v.  KiUrell,  33  Ala.  449  ;  Phinney  v.  Baldwin,  16 
111.  108  ;  McAllister  v.  Smith,  17  id.  328 ;  Brown  v.  Nevitt,  27 
Miss.  801 ;  Shelton  v.  Marshall,  16  Texas,  344. 

There  is  an  exception  to  the  general  rule,  that  a  contract  which 
is  valid  at  the  place  where  made  is  valid  in  all  places,  and  that 
is,  where  the  contract  is  injurious  to  the  public  rights,  offen- 
sive to  the  morals,  or  in  contravention  of  the  policy  or  laws  of 
the  place  where  it  is  sought  to  be  enforced.  Yan  Reimsdyck 
V.  Kane,  1  Gallison,  371  ;  Harvey  v.  Richards,  1  Mason,  381 ; 
Blanchard  v.  Russell,  13  Mass.  1 ;  Lodge  v.  Phelps,  1  Johns. 
Cas.  139;  Hall  v.  Costello,  48  N.  H.  176 ;  S.  C,  2  Am.  Rep.  207 ; 
Hinds  V.  Bazealle,  3  Miss.  837 ;  Kanaga  v.  Taylor,  7  Ohio  St.  134; 
Crosby  v.  Huston,  1  Texas,  203 ;  Martin  v.  Hill,  12  Barb.  631. 

The  general  rule  of  exposition  is,  that  a  contract  is  to  be  con- 
strued according  to  the  law  or  custom  of  the  place  where  it  was 
made,  if  the  actual  intention  of  the  parties  in  this  respect  is  not 
expressly  stated,  but  is  left  to  be  inferred  from  the  nature,  objects 
and  occasion  of  the  contract.  Bank  of  Orange  County  v.  Colby, 
12  N.  H.  520  ;  Bryant  v.  Edson,  8  Vt.  325 ;  Wilcox  v.  Hunt,  13 
Peters,  378,  379  ;  Pojpe  v.  Nicker  son,  3  Story,  484 ;  Trimbey  v. 
Yignier,  1  Bing.  (N.  C.)  151,  159 ;  Be  la  Vega  v.  Vianna,  1  B.  & 
Ad.  284. 

So,  in  general,  the  construction  and  force  of  a  contract  is  to  be 
governed  by  the  law  of  the  country  where  it  is  to  be  performed. 
Lee  V.  Selleck,  33  N.  Y.  (6  Tiff.)  615  ;  Hall  v.  Costello,  48  N.  H. 
176;  S.  C,  2  Am.  Rep.  207;  Tillotson  v.Tillotson,  34  Conn. 335; 
Hunt  V.  Standart,  15  Ind.  33;  Peck  v.  Hibbard,  26  Vt.  698; 
Sherman  v.  Gassett,  9  111.  521 ;  Broadhead  v.  Noyes,  9  Mo.  56. 

A  contract  which  is  to  be  performed  partly  in  one  country  and 
partly  in  another  country  has  a  double  operation,  and  each  part 
is  to  be  construed  according  to  the  laws  of  the  country  in  which 
it  is  to  be  performed.  Pope  v.  Nickerson,  3  Story,  485  ;  Lee  v. 
Selleck,  32-Barb.  522;  20  How.  275  ;  33  N.Y.  (6  Tiff.)  615;  Pome- 
roy  V.  Ainsworth,  22  Barb.  118 ;  Chapman  v.  Robertson,  6 
Paige,  627;  Peck  v.  Mayo,  14  Vt.  33. 

§  22.  Of  time  of  contract.  A  contract  is  sometimes  to  be  con- 
strued according  to  the  laws  and  usages  existing  at  the  time  of 
its  execution.  And  this  will  lead  to  a  consideration  of  the  state 
of  the  country,  the  manners  of  society,  and  the  customs  which 
pervaded  and  modified  contracts  at  that  time. 

But  where  the  language  of  an  instrument  is  clear  and  precise, 


OF  ACTIONS  FOUNDED  UPON  TORTS.  131 

that  must  control ;  and  it  is  only  where  the  language  is  doubtful 
or  obscure  that  such  extrinsic  evidence  is  admissible.  Adams  v. 
Frothingham,  3  Mass.  360. 

§  23.  Of  parol  evidence  to  explain  or  contradict  contracts.  The 
rule,  as  to  admitting  parol  evidence  for  the  purpose  of  varying 
or  contradicting  a  written  instrument,  is,  that  where  there  is  no 
ambiguity  in  the  terms  used,  the  agreement  or  instrument  itself 
is  the  only  evidence  or  criterion  of  the  intention  of  the  parties  ; 
and  this  principle  excludes  all  prior  or  contemporaneous  parol 
evidence  contradictory  to  the  writing  itself,  even  though  such 
evidence  might  clearly  show  that  the  real  intention  of  the  par- 
ties was  at  variance  with  the  particular  expressions  used  in  the 
written  instrument.  Hakes  v.  Hotchkiss,  23  Vt.  231;  Wakefield 
V.  Stedman,  12  Pick.  572 ;  Morss  v.  Salisbury,  48  N.Y.  (3  Sick.) 
636 ;  Strohecker  v.  Farmers'  Bank,  6  Penn.  St.  41 ;  Rair  v.  La 
Brouse,  10  Ala.  548  ;  Colwell  v.  Lawrence,  38  N.  Y.  (11  Tiff.)  71; 
36  How.  306  ;  5  Trans.  App.  307. 

A  written  contract  generally  contains  the  deliberate,  definite, 
and  final  agreement  of  the  parties,  and  therefore  parol  evidence 
of  the  negotiations  prior  to  the  execution  of  the  written  instru- 
ment is  inadmissible  either  to  vary  or  to  contradict  the  writing. 
Harnor  v.  Graves,  15  C.  B.  667;  S.  C,  29  Eng.  Law  &  Eq.  220  ; 
Cook  V.  Combs,  39  N.  H.  592  ;  Hakes  v.  Hotchkiss,  23  Vt.  231 .; 
Carter  v.  Hamilton,  11  Barb.  147  ;  FitcJi  v.  Woodruff  &  Beach 
Iron  Works,  29  Conn.  82  ;  Kain  v.  Old,  2  B.  &  C.  634. 

If,  however,  the  language  of  the  contract  is  ambiguous, 
obscure,  or  technical,  parol  evidence  may  be  admitted  to  show 
the  true  meaning  of  the  words  used,  and  the  intention  of  the 
parties.  See  ante,  §§  5,  11, 12,  13,  17,  19,  20.  This  subject  need 
not  be  pursued  further  in  this  place,  as  it  will  be  incidentally 
discussed  in  the  various  subsequent  titles  of  this  work. 

TITLE  II.     . 

OF  ACTIONS  FOUNDED  UPON  TORTS. 

ARTICLE  I. 

IN"  QENEEAL. 

Section  1.  Rules,  definitions,  and  illustrations.    The  law  in 

relation  to  contra^cts,  express  or  implied,  having  been  discussed  as 
fully  as  is  required  in  this  part  of  the  work,  it  now  remains  a  part 
of  the  task  to  explain  some  of  the  elementary  principles  of  law 


132  OF  ACTIONS  FOUNDED  UPON  TOETS. 

whicli  relate  to  torts  or  wrongs.  In  a  subsequent  part  of  this  work 
the  subject  of  torts  will  be  very  fully  discussed.  A  tort  may  be  de- 
scribed, generally,  as  a  wrong  independent  of  contract.  It  involves 
the  idea,  if  not  of  some  infraction  of  law,  at  aU  events  of  some 
infringement  or  withholding  of  a  legal  right,  or  some  violation 
of  a  legal  duty.  Actions  for  torts  will  lie  in  several  different 
classes  of  cases,  such,  for  instance,  as  for  an  injury  to  the  person 
or  to  personal  rights  ;  for  the  wrongful  taking  or  conversion  of 
personal  property ;  for  an  injury  to  personal  or  real  property, 
and  the  like  cases.  The  right  of  action  for  a  tort  is  generally 
founded,  either  upon  an  invasion  of  some  legal  right  of  person 
or  property,  or  on  the  violation  of  some  duty  toward  the  public 
which  has  resulted  in  some  damage  to  the  plaintifi,or  on  the  infrac- 
tion of  some  private  duty  or  obligation  which  has  been  productive 
of  damage  to  the  complaining  party.  The  importance  of  having 
a  correct  perception  of  the  nature  of  a  right  of  action  founded 
upon  a  tort  or  wrong  independent  of  contract,  will  justify  a  brief 
examination  of  each  of  the  three  classes  just  specified. 

The  first  class  of  cases  relates  to  those  instances  in  which  com- 
plaint is  made  of  the  invasion  of  some  legal  right  which  is  actually 
in  the  possession  of  the  plaintiff,  and  to  the  enjoyment  of  which 
he  is  exclusively  entitled,  as  where  a  wrong  is  done  to  the  person 
or  to  the  reputation,  where  goods  are  tortiously  converted,  or  a 
direct  injury  is  done  to  property.  In  such  cases,  a  plaintiff,  to 
entitle  himself  to  the  recovery  of  damages,  may  be  called  upon 
to  prove  two  things  ;  first,  the  existence  of  the  right  alleged ;  and 
secondly,  that  it  has  been  violated  by  the  defendant. 

The  existence  of  the  right  alleged  or  claimed  will  always  have 
to  be  established  by  a  reference  to  legal  principles.  Sometimes 
this  right  admits  of  easy  proof,  as  in  an  action  for  a  trespass  in 
taking  away  goods,  where  the  plaintiff  would  have  a  prima  facie 
case  sufficient  to  entitle  him  to  recover,  upon  merely  proving  his 
own  previous  possession  of  the  goods,  and  that  they  were  sub- 
sequently tortiously  taken  out  of  it  by  the  defendant,  and  the 
reason  of  this  is,  that  a  bare  possession  of  goods  gives  a  right  of 
action  against  a  wrong-doer,  for  his  invasion  of  the  plaintift's 
right  of  possession  or  property.  In  other  cases  the  proof  may 
not  be  so  simple,  for  the  facts  to  be  established  may  have  to  be 
deduced  from  a  mass  of  details  more  or  less  complicated,  and 
from  facts  and  circumstances  which  may  be  direct  or  very  remote 
in  their  bearing  upon  the  questions  ;  and  further,  the  existence 
of  the  right,  as  a  matter  of  law,  after  the  facts  are  established, 


OF  ACTIONS  FOUNDED  UPON  TORTS.  133 

may  have  to  be  proved  by  an  appeal  to  elementary  principles 
and  deductions  ingeniously  drawn  from  tliem  by  a  discussion  of 
general  doctrines  of  public  policy,  or  by  embarrassing  inquiries 
touching  the  intention  of  the  legislature. 

In  the  second  class  of  cases,  an  action  of  tort  may  be  founded 
upon  the  violation  of  some  public  duty  toward  the  public,  and 
the  consequent  damages  to  the  plaintiff.  To  maintain  an  action 
in  this  class  of  cases,  the  plaintiff  must  prove  three  different  mat- 
ters, that  is  to  say  :  the  existence  of  the  alleged  duty,  its  breach, 
and  the  resulting  damage.  The  existence  of  the  duty  must  be 
shown,  either  by  bringing  the  facts  of  the  case  within  the  reach 
and  control  of  some  acknowledged  or  settled  doctrine  of  the  com- 
mon law,  or  by  showing  that  they  are  within  the  words,  spirit, 
or  purview  of  an  act  of  the  legislature.  Whenever  a  duty  has  to 
be  performed  toward  the  public  by  an  individual,  and  another 
is  specially  injured  in  consequence  of  the  non-observance  or  non- 
discharge  of  such  duty,  or  through  misfeasance  or  malfeasance 
in  its  discharge,  an  action  will  lie  at  the  suit  of  the  latter  against 
the  former.  The  breach  of  a  public  duty  which  causes  damages 
to  an  individual,  combines,  in  reality,  two  tortious  ingredients, 
which  are,  according  to  circumstances,  more  or  less  clearly  dis- 
tinguishable from  each  other  ;  one  is  the  wrong  done  to  the  public, 
the  other,  the  wrong  done  to  the  individual  complaining.  That 
which  is,  in  strictness,  correlative  to  a  public  duty,  is  a  right 
enforceable  at  the  suit  of  the  public.  But,  then,  the  general  rule 
of  law  is  well  settled,  that  individuals  cannot  enforce  a  public 
right,  or  redress  a  public  injury,  by  suits  in  their  own  names. 
Where  they  suffer  wrong,  or  sustain  damages  in  common  with 
other  members  of  the  community,  no  personal  right  of  action 
thence  accrues.  The  private  grievance  is  merged  in  that  of  the 
public  ;  and  the  remedy,  if  any  exists,  will  be  by  public  prose- 
cution, in  order  that  the  rights  of  the  public  may  thus  be  vindi- 
cated. Even  where  one  person  sustains  an  injury  in  common  with 
the  public,  and  from  circumstances  in  which  he  happens  to  be 
placed,  suffers  more  frequently  or  more  severely  than  others,  he 
will  not,  on  that  account,  have,  as  of  course,  a  separate  right  of 
action.  It  is  only  where  he  suffers  some  special  damage,  differing 
in  kind  from  that  which  is  common  to  others,  that  a  personal 
remedy  accrues  to  him.  It  may  be  repeated,  that  in  every  case 
belonging  to  the  class  now  under  consideration,  it  will  be  found 
as  an  ingredient  of  the  right  of  action,  that  the  defendant  is 
chargeable  with  some  nonfeasance,  misfeasance,  or  malfeasance 


134  OF  ACTIONS  FOUNDED  UPON  TORTS. 

of  a  public  duty,  constituting  an  offense,  whether  indictable  or 
not,  against  the  public,  and  also  an  injury  productive  of  special 
damage  to  an  individual.  Where,  then,  a  private  action  is 
brought  for  the  recovery  of  damages  caused  by  a  breach  of  a 
public  duty,  the  damage,  and  not  the  breach  of  duty,  is  that  for 
which  the  plaintiff  sues  ;  his  object  being,  not  to  vindicate  a 
right  on  behalf  of  the  public,  but  to  recover  compensation  for 
a  wrong  done  to  himself.  Between  the  public  and  the  private 
wrong,  concurring  in  a  cause  of  action  of  the  kind  now  alluded 
to,  the  distinction  should  always  be  carefully  traced  out.  The 
mode  of  tracing  it  is  illustrated  by  the  following  case,  in  which 
an  action  was  brought  against  a  witness  for  disobeying  a  sub- 
poena ;  and  the  court  observed:  "That,  in  such  an  action, 
brought  for  a  breach  of  duty,  not  arising  out  of  a  contract  be- 
tween the  plaintiff  and  the  defendant,  but  for  disobeying  the 
order  of  a  competent  authority,  the  existence  of  actual  damage 
or  loss  is  essential  to  the  action  ;  as  the  law  will  not  imply  a  loss 
to  the  plaintiff  from  mere  disobedience  to  the  subpoena."  Couling 
V.  Coxe,  6  C.  B.  703.  In  other  words,  the  law  will  here  discrim- 
inate between  the  breach  of  the  public  duty  and  the  personal  in- 
jury, which  form  the  component  elements  of  the  complete  right 
of  action.  In  the  case  just  mentioned,  the  right  of  action  was 
founded  upon  the  breach  of  a  public  duty,  existing  at  the  com- 
mon law,  and  productive  of  damage  to  the  plaintiff.  But  a  pub- 
lic duty  may  also  be  imposed,  in  part  or  wholly,  by  the  statute 
law ;  and  when  this  is  so,  the  precise  nature  and  extent  of  the 
statutory  duty  must,  of  course,  be  determined  by  reference  to 
the  words  of  the  act  creating  it.  In  Ewer  v.  Jones,  6  Mod.  27, 
Lord  Holt  said :  "  Wherever  a  statute  enacts  any  thing,  or  pro- 
hibits any  thing  for  the  advantage  of  any  person,  that  person 
shall  have  a  remedy  to  recover  the  advantage  given  to  him,  or  to 
have  satisfaction  for  the  injury  done  to  him,  contrary  to  law,  by 
the  same  statute;  for  it  would  be  a  fine  thing  to  make  a  law  by 
which  one  has  a  right,  but  no  remedy  but  in  equity."  This  ex- 
pression is  equivalent  to  saying  that,  "  where  a  statute  gives  a 
right,  then,  although  in  express  terms  it  has  not  given  a  remedy, 
the  remedy  which  by  law  is  properly  applicable  to  that  right, 
follows  as  an  incident."  Maule,  B.,  Braithwaile  v.  Skinner,  5 
Mees.  &  Wels.  327. 

In  the  third  place,  a  right  of  action  for  a  tort  may  be  founded 
on  the  infraction  of  some  private  compact,  or  of  some  private 
duty  or  obligation,  and  consequential  damages  to  the  complain- 


OF  ACTIONS  FOUNDED  UPON  TORTS.  135 

ant.  Any  duty,  moreover,  must  in  strictness  be  deemed  "private," 
whicli  is  to  be  observed,  not  toward  the  community  at  large,  but 
in  relation  to  one  or  more  of  its  members.  The  class  of  private 
duties  is  consequently  extremely  large;  it  comprehends  duties 
flowing  from  express  or  implied  contracts,  from  bailments,  from 
the  relation  of  master  and  servant,  or  of  landlord  and  tenant,  and 
from  the  occupancy  of  land,  etc.  Now,  in  any  case  referable  to 
this  class,  the  plaintiff  must,  in  order  to  sustain  his  action,  be 
able  to  prove  some  kind  of  contract  or  obligation  out  of  which  the 
specific  duty,  with  a  breach  whereof  the  defendant  is  charged, 
will  flow  in  legal  contemplation,  or  he  must  adduce  evidence  of 
facts  establishing  such  relation  between  the  defendant  and  him- 
self,, that  such  specific  duty  will  result.  And  further  than  this 
he  must  also  show  a  breach  of  the  duty  thus  raised,  and  conse- 
quential damage  to  himself.  A  private  duty  may  exist  at  common 
law,  for  a  breach  of  which,  if  coupled  with  consequential  dam- 
age, an  action  will  be  maintainable.  Although  a  tort  difiers  essen- 
tially from  a  contract  as  a  foundation  for  an  action,  it  not  unfre- 
quently  happens  that  a  particular  transaction  admits  of  being 
regarded  from  two  different  points  of  view,  so  that,  when  contem- 
plated from  one  of  these  points,  it  presents  all  the  characteristics 
of  a  good  cause  of  action  upon  contract ;  and  when  regarded 
from  the  other,  it  offers  sufiicient  materials  whereupon  to  found 
an  action  for  a  tort.  Thus  carriers  warrant  the  transportation 
and  delivery  of  goods  intrusted  to  them;  attorneys,  surgeons  and 
engineers  undertake  to  discharge  their  duty  with  a  reasonable 
amount  of  skill,  and  with  integrity  ;  and  for  any  neglect  or  un- 
skillfulness  by  individuals  belonging  to  one  of  these  professions, 
a  party  who  had  been  injured  thereby  may  maintain  an  action, 
either  in  tort  for  the  wrong  done,  or  for  a  breach  of  the  contract 
at  his  election.  In  short,  wherever  there  is  a  contract  and  some- 
thing to  be  done  in  the  course  of  the  employment  which  is  the 
subject  of  that  contract,  if  there  is  a  breach  of  duty  in  the  course 
of  that  employment,  the  plaintifi"  may  recover  either  in  tort  or 
on  contract,  that  is  to  say,  where  there  is  an  employment,  which 
employment  itself  creates  a  duty,  an  action  on  the  case  will  lie 
for  a  breach  of  that  duty,  although  it  may  consist  in  doing  some- 
thing contrary  to  an  agreement  made  in  the  course  of  such 
employment  by  the  party  upon  whom  the  duty  is  cast.  Courtenay  • 
V.  Earle,  10  C.  B.  83;  Howards.  Sheplierd,  9  id.  319,  321;  Broion 
V.  Boorman^  11  CI.  &  F.  44. 

Where  the  tort  complained  of  thus  flows  from  a  contract,  ex- 


136  OF  ACTIONS  FOUNDED  UPON  TORTS. 

press  or  implied,  there  is  manifestly  a  direct  privity  between  the 
parties.  It  must  not,  however,  be  therefore  inferred  that  privity 
is,  in  general,  necessary  to  support  an  action  in  tort,  for  many  of 
the  cases  just  cited  show  that  it  is  not  so.  And  for  the  purpose 
of  establishing  the  fundamental  distinction  between  actions  of 
tort  and  contract,  the  following  cases  may  be  instanced  :  A,  a 
stage  proprietor,  contracts  with  B  to  carry  his  servant  C,  and  in 
doing  so,  is  guilty  of  negligence,  which  causes  injury  to  C,  and 
consequent  damage,  by  reason  of  loss  of  service  to  his  master. 
Under  these  circumstances,  A  may  be  sued  in  an  action  upon 
contract  by  B,  and  in  an  action  of  tort  by  C;  privity  not  being 
needed  to  support  such  latter  action,  which  is  founded  upon  the 
principle,  that  where  a  coach  proprietor  undertakes  to  convey  a 
passenger,  and  does  so  negligently,  he  is  amenable  for  the  con- 
sequences. MarsJiall  v.  Torlc,  Newcastle  and  BerioicTc  M.  Co., 
11  C.  B.  655  ;  Parke,  B.,  Longmeld  v.  HoUiday,  6  Exch.  767 ; 
Nolton  Y.  Western  R.  R.  Co.,\5  N.  Y.  (1  Smith)  444;  S.  C,  10 
How.  97  ;  Carroll  v.  Staten  Island  R.  R.  Co.,  58  N.  Y.  (13  Sick.) 
126,  134,  and  cases  cited. 

In  like  manner,  if  a  mason  contracts  to  erect  a  bridge,  or  other 
work,  on  a  public  road,  and  erects  it  not  in  accordance  with  his 
contract,  and  so  as  to  be  a  nuisance  to  the  highway,  a  third  per- 
son, who  sustains  an  injury  by  reason  of  its  defective  construc- 
tion, may  recover  damages  from  the  contractor,  who  will  not  be 
allowed  to  protect  himself  from  liability  by  showing  an  absence  of 
privity  between  himself  and  the  injured  party,  or  that  he  is  also 
liable  to  another  party  for  a  breach  of  his  contract.  Parke,  B., 
Longmeid  v.  HolUday,  6  Exch.  767.  Bat  see  Couglitryy.  Glohe 
Woolen  Co.,  56  N.  Y.  (11  Sick.)  124.  So,  if  an  apothecary  or  a  phy- 
sican  administers  improper  medicines  to  his  patient,  or  a  surgeon 
unskillfully  treats  him,  and  thereby  injures  his  health,  the  apothe- 
cary, physician,  or  surgeon,  will  be  liable  to  the  patient,  even 
where  the  father  or  friend  of  the  patient  may  have  employed  such 
physician,  etc.,  and  was  to  pay  him  ;  for,  though  no  such  contract 
had  been  made,  the  physician,  etc.,  would  be  liable  to  an  action  for 
his  malfeasance,  if  he  gave  improper  medicim-s,  or  if  the  surgeon 
nnskillfuUy  treated  his  patient.  Pippin  v.  Slieppard,  11  Price, 
4.00  ;  Gladwell  v.  Steggall,  5  Bing.  (N.  C.)  733;  Judgm.,  6  Exch. 
767.  In  one  case,  the  defendant  was  a  ]>ei-son  whose  business  it 
was  to  prepare  drugs  for  the  market ;  and  an  action  was  brought 
against  him  to  recover  damages  for  negligently  putting  up, 
labeling  and  selling  ajar  of  what  purported  to  be  the  extract  of 


OF  ACTIONS  FOUNDED  UPON  TORTS.  137 

dandelion,  a  simple  and  harmless  medicine,  while  the  article 
actually  sold  was  the  extract  of  belladonna,  which  is  a  deadly 
poison  ;  and  after  it  had  passed  through  the  hands  of  several 
dealers,  a  portion  of  the  contents  of  the  jar  was  sold  to  the  plain- 
tiff, who  took  it  in  pursuance  of  the  prescription  of  a  physician, 
as  a  medicine,  and  was,  in  consequence,  greatly  injured  ;  and  it 
was  held  that  the  defendant  was  liable,  on  the  ground  that  his 
negligence  put  human  life  in  imminent  danger ;  and  that  the 
want  of  privity  of  contract  did  not  make  any  difference  as  to  his 
liability.  Thomas  v.  Wincliester,  6  N.  Y.  (2  Seld.)  397  ;  Fleet 
V.  HallenTcemp,  13  B.  Monr.  (Ky.)  219. 

In  relation  to  privity  as  an  ingredient  in  an  action  founded 
upon  tort,  it  is  sometimes  made  a  question  how  far  it  is  neces- 
sary to  allege  and  prove  that  the  defendant  was  guilty  of  a  fraud, 
as  the  following  case  will  show  :  The  plaintiff 's  father  purchased 
of  the  defendant  a  gun,  warranted  to  have  been  made  by  a  par- 
ticular maker,  stating  at  the  same  time  that  the  gun  was  required 
for  the  use  of  himself  and  his  son.  The  plaintiff  having  been 
injured  by  the  bursting  of  a  gun,  sued  the  defendant  for  dama- 
ges in  an  action  on  the  case.  At  the  trial  it  was  proved  that 
the  gun  had  not,  in  fact,  been  made  by  the  particular  indi- 
vidual named  in  the  warranty ;  and  the  general  verdict,  with 
heavy  damages,  was  found  for  the  plaintiff.  The  defendant 
having  moved  in  arrest  of  judgment,  the  court  was  called  upon 
to  decide  as  if  the  following  facts  had  been  actually  found  by 
the  jury,  viz.,  that  the  defendant  had  Jcnowingly  sold  the  gun  in 
question  to  the  father,  for  the  purpose  of  heing  used  hy  the 
plaintiffs  and  had  knowingly  made  a  false  warranty  that  this 
might  be  safely  done,  in  order  to  effect  the  sale  ;  and  further, 
that  the  plaintiff,  on  the  faith  of  such  warranty,  and  believing 
it  to  he  true,  used  the  gun,  and  thereby  sustained  damage.  And  it 
was  contended,  on  behalf  of  the  defendant,  that  there  was  no  priv- 
ity of  contract  between  himself  and  the  plaintiff ;  that  there  was 
no  breach  of  any  public  duty,  nor  even  a  violation  of  any  private 
right  existing  between  the  parties  to  the  action.  The  court,  how- 
ever, held,  that  the  defendant,  having  been  guilty  of  a  deceit,  was 
responsible  for  its  consequences  whilst  the  instrument  sold  by 
him  was  in  the  possession  of  an  individual  to  whom  his  fraudu- 
lent statement  had  been  communicated,  and  for  whose  use  he 
knew  it  was  purchased.  Langridge  v.  Levy,  2  Mees.  &  Wels. 
519,  531 ;  S.  C,  4  id.  337.  It  must  not,  however,  be  inferred  from 
the  preceding  case,  that  "  whenever  a  duty  is  imposed  on  a 

Vol.  L  — 18 


138  OF  ACTIONS  FOUNDED  UPON  TORTS. 

person  by  contract  or  otlierwise,  and  that  duty  is  violated,  any 
one  injured  by  it  may  have  a  remedy  against  the  wrong-doer." 
Judgm.,  2  Mees.  &  Wels.  630 ;  Loop  v.  Litchfield,  42  N.  Y.  (3 
Hand)  351  ;  Losee  v.  Clute,  51  N.  Y.  (6  Sick.)  494  ;  S.  C,  10  Am. 
Rep.  638.  Such  a  principle,  if  recognized,  would  impose  an  in- 
definite extent  of  liability,  and  lead  to  the  most  absurd  and  out- 
rageous consequences.  This  ^important  limitation  of  the  rule  re- 
specting privity  is  exemplified  in  a  recent  case.  A  husband  and  his 
wife  sued  in  tort  for  an  injury  to  the  wife,  caused,  as  the  com- 
plaint alleged,  by  the  fraudulent  and  deceitful  warranty  of  a 
lamp  sold  by  the  defendant.  The  case  showed  that  the  warranty 
was  made  to  the  husband,  and  the  jury  negatived  the  existence 
of  fraud,  and  the  court  held  that  the  wife  could  not  properly  be 
joined  as  a  co-plaintiff  in  the  action,  because  the  injury  to  her 
flowed  from  the  breach  of  a  contract  which  was  made  by  the 
husband  alone.  Langmeid  v.  Holliday,  6  Exch.  761.  The 
absence  of  fraud  clearly  distinguishes  this  case  from  that  of 
Langridge  v.  Levy,  last  cited.  The  court  observed  :  "  There  is 
no  doubt  that  if  the  defendant  had  been  guilty  of  a  fraudulent 
representation  that  the  lamp  was  fit  and  proper  to  be  used, 
knowing  that  it  was  not,  and  intending  it  to  be  used  by  the  plain- 
tiff's  wife  or  any  particular  individual,  the  wife,  or  that  individ- 
ual, would  have  had  an  action  for  the  deceit  upon  the  prin- 
ciple which  all  actions  for  deceitful  representations  are  founded, 
and  which  was  strongly  illustrated  in  the  case  of  Langridge 
v.  Levy,  viz.,  that  if  any  one  knowingly  tells  a  falsehood, 
with  intent  to  induce  any  other  to  do  an  act  which  results 
in  his  loss,  he  is  liable  to  that  person  in  an  action  of  deceit.  But 
the  fraud  being  negatived  in  this  case,  the  action  cannot  be  main- 
tained on  that  ground  by  the  party  who  sustained  the  damages." 
The  court  then  proceed  to  remark  that  there  are  other  cases,  no 
doubt,  besides  those  of  fraud,  in  which  a  third  person,  though 
not  a  party  to  the  contract  in  question,  may  sue  for  damage,  if 
it  be  broken ;  those  cases  occurring,  however,  where,  as  in  the 
examples  already  given,  ante,  there  has  been  a  wrong  done  to 
that  person,  for  which  he  would  have  had  a  right  of  action, 
though  no  such  contract  had  been  made.  Coughtry  v.  Olohe 
Woolen  Co.,  56  N.  Y.  (11  Sick.)  124,  127 ;  Oodley  v.  Hagerty,  20 
Penn.  St.  387. 

"  Fraud  and  deceit  in  the  defendant  and  damage  to  the  plain- 
tiff are  a  sufiicient  foundation  for  the  action  of  trespass  on  the 
case,  though  no  benefit  accrue  to  the  defendant.    The  action  will 


OF  ACTIO JNS  FOUNDED  UPON  TORTS.  139 

lie  whenever  there  has  been  the  assertion  of  a  falsehood  with  a 
fraudulent  design  as  to  a  fact,  when  a  direct  and  positive  injury 
arises  from  such  assertion."  Welles,  J.,  White  v.  Merritt,  7 
N.  Y.  (3  Seld.)  356,  357;  Benton  v.  Pratt,  2  Wend.  385. 

It  may  be  here  observed  that  a  distinction  undeniably  exists 
between  moral  and  legal  fraud,  and  that  there  are  many  kinds 
of  moral  fraud  which  clearly  could  not  be  made  available,  either 
as  a  ground  of  action,  or  by  way  of  defense  before  a  court  of  law. 
Thus  a  vendor  is  entitled  to  sell  for  the  best  price  he  can  get,  and 
is  not  liable  at  law  for  a  simple  commendation  of  his  own  goods, 
however  worthless  they  may  be,  provided  he  has  not  made  any 
false  statement  as  to  their  quality  or  condition,  nor  concealed 
any  thing  which  he  was  legally  boun,d  to  disclose,  nor  asserted 
any  thing  respecting  them  which  may,  in  legal  contemplation, 
amount  to  a  warranty. 

The  cases  show  a  distinction  between  legal  and  moral  fraud. 
For  instance,  where  a  person  purports  to  accept  a  bill  of  exchange 
by  procuration,  when  in  fact  he  has  no  such  authority,  that  has 
been  held  to  be  a  legal  fraud,  which  rendered  the  party  so  acting 
liable  to  an  action  of  deceit,  although  the  jury  negatived  the  ex- 
istence of  fraud.  Murray  v.  Mann,  2  Exch.  538,  541;  PolMll  v. 
Walter,  3  Barn.  &  Ad.  114.  As  to  the  sufficiency  of  "  legal " 
fraud  to  support  an  action  when,  unaccompanied  by  any  degree 
of  "moral  "  fraud,  judicial  opinions  have  conflicted.  But  it  has 
been  held  that  a  principal  is  responsible  for  such  representations 
as  may  be  made  by  his  agent  in  the  transaction  of  his  business, 
although  such  principal  may  be  entirely  ignorant  of  the  state- 
ment, and  innocent  of  any  fraud  ;  and  any  contract  so  made  may 
be  avoided  on  the  part  of  the  other  party  on  the  ground  of  such 
fraud  by  the  agent.  Bennett  v.  Judson,  21  N.  Y.  (7  Smith)  238; 
Atwood  V.  Small,  6  CI.  &  Fin.  413 ;  see  these  cases  criticised, 
WaTi:ema7i  v.  Bailey,  51  N.  Y.  (6  Sick.)  27;  S.  C,  10  Am.  Rep. 
551.  If  a  party  makes  a  material  misrepresentation  without  any 
knowledge  whether  the  statement  is  true  or  false,  with  a  view  to 
secure  some  benefit  to  himself,  or  to  deceive  a  third  person,  he  is, 
in  law,  as  much  guilty  of  a  fraud  as  though  he  knew  it  to  be 
untrue  or  false.  lb.;  Evans  y.  Edmonds,  13  C.  B.  786  ;  Taylor  v. 
Ashton,  11  Mees.  &  Wels.  401.  But  it  is  settled  law,  that  inde- 
pendently of  duty,  no  action  will  lie  unless  there  is  such  a  mis- 
representation as  that  just  stated,  or  unless  the  party  making  it 
knows  it  to  be  untrue,  and  makes  it  with  the  fraudulent  inten- 
tion of  inducing  another  persoti  to  act  on  the  faith  of  it,  who 


140  OF  ACTIONS  FOUNDED  UPON  TORTS. 

does  so  act  to  his  injury.  TJiom  v.  Bigland,  8  Excli.  731 ;  Evans 
V.  Collins,  5  Q.  B.  820 ;  Ormrod  v.  Huth,  14  Mees.  &  Wels.  651 ; 
Wakeman  v.  Dalley,  51  N.  Y.  (6  Sick.)  27 ;  S.  C,  10  Am.  Rep. 
551;  Arthur  v.  Griswold,  54  N.  Y.  (10  Sick.)  400. 

§  2.  Novelty  of  actions.  It  has  been  seen  that  the  number  of 
common-law  principles  is  not  very  great ;  but  their  nature  is 
such  that  they  can  be  applied  to  new  cases  as  they  arise  and 
require  an  adequate  and  appropriate  remedy.     Ante,  6,  7,  8. 

Actions  are  sometimes  brought  in  cases  differing  in  facts  from 
previously  reported  or  adjudged  cases ;  and  an  objection  is 
"usually  urged  against  them  that  no  similar  action  has  been 
brought  or  sustained.  Such  an  objection  has  force,  and  it  is 
entitled  to  a  full  and  careful  examination  by  the  court.  But  the 
mere  fact  that  the  action  is  not  founded  upon  some  prior  adjudged 
case  or  precedent  is  no  sufficient  legal  answer  to  the  action,  if 
the  facts  of  the  case  show  a  clear  right  of  action  when  tested  by 
sound  legal  principles.  And  the  courts  have  fully  and  clearly 
defined  and  settled  the  proper  principle  of  adjudication  in  such 
cases.  "Another  argument  which  has  been  made  use  of  is,  that 
this  is  a  new  case,  and  that  there  is  no  precedent  of  such  an 
action.  Where  cases  are  new  in  their  principle,  then  I  admit 
that  it  is  necessary  to  have  recourse  to  legislative  interposition  in 
order  to  remedy  the  grievance;  but  where  the  case  is  only  new 
in  the  instance,  and  the  only  Question  is  upon  the  application 
of  a  principle  recognized  in  the  law  to  such  new  case,  it  will  be 
just  as  competent  to  courts  of  justice  to  apply  the  principle  to 
an}''  case  which  may  arise  two  centuries  hence  as  it  was  two  cen- 
turies ago  ;  if  it  were  not,  we  ought  to  blot  out  of  our  law  books 
one-fourth  part  of  the  cases  that  are  to  be  found  in  them." 
Pasley  v.  Freeman,  3  T.  R.  51;  2  Smith's  Lead.  Cas.  92  (157), 
101  (166);  see,  to  the  same  effect.  Chapman  v.  PicJcersgill,  2 
Wils.  146;  Ashbyv.  White,  1  Ld.  Raym.  938;  S.  C,  1  Smith's 
Lead.  Cas.  (342),  455  (360),  472;  Winsmore  v.  OreenbanJc,Wi\le8, 
577.  In  a  late  English  case  it  is  said  :  "  I  agree  that  our  judg- 
ment in  this  case  should  be  in  favor  of  the  plaintiffs.  This  case, 
no  doubt,  involves  first  principles.  On  the  one  hand,  the  law  is 
strongly  against  the  invention  or  creation  of  any  rights  of  action, 
but,  on  the  other  hand,  where  a  wrong  has  actually  been  suffered 
by  one  person  in  consequence  of  the  conduct  of  another,  one  is 
anxious  to  uphold  as  far  as  possible  the  maxim  '  ubi  Jus  ibi 
remedium.''''''     Western  Counties  Manure  Co. ^.  Lames  Chem- 


OF  ACTIONS  FOUNDED  UPON  TORTS.  141 

ical  3fanure  Co.,  L.  R.,  9  Exch.  218,  222;   S.  C,  10  Eng.  Rep. 
391,  394 ;  but  see  Oshorn  v.  Gillett,  L.  R.,  8  Exch.  88. 

The  American  cases  agree  with  the  English  rule.  In  Yates  v. 
Joyce,  11  Johns.  136,  140,  141,  it  is  said  :  "  This  appears  to  be  an 
action  of  the  first  impression.  The  books  do  not  furnish  a  pre- 
cedent in  its  favor.  It  is  obvious,  however,  from  the  statement  of 
the  plaintiff's  case,  in  the  declaration,  the  truth  of  which  is 
admitted  by  the  demurrer,  that  he  has  sustained  damage  by  the 
act  of  the  defendant,  which  he  alleges  was  done  fraudulently, 
and  with  intent  to  injure  him.  It  is  the  pride  of  the  common 
law,  that  wherever  it  recognizes  or  creates  private  right,  it  also 
gives  a  remedy  for  a  willful  violation  of  it."  Gardner  v.  Heartt, 
3  Denio,  235.  "It  forms  no  objection  to  this  action  that  the  cir- 
cumstances of  the  case  are  novel,  and  that  no  case  precisely  simi- 
lar in  all  respects  has  previously  arisen.  The  action  is  based 
upon  very  general  principles,  and  is  designed  to  afford  relief  in 
all  cases  where  one  man  is  injured  by  the  wrongful  act  of  another, 
where  no  other  remedy  is  provided."  Van  Pelt  v.  McGraio,  4 
N.  Y.  (4  Comst.)  Ill,  112;  CMsTiolm  v.  Gadsden,  1  Strobh.  L.  220, 
224 ;  Adams  v.  Paige,  7  Pick.  542,  550  ;  PaneyY.  Weed,  3  Sandf. 
580.  It  has  been  held  that  a  new  action  will  not  lie,  where  there  is 
redress  by  other  existing  actions.  Lamb  v.  Stone,  11  Pick.  626, 
532  ;  Barker  v.  Mathews,  1  Denio.  335  ;  and  see  Moody  v.  Bur- 
ton, 27  Me.  427,  436 ;  Costigan  v.  Mohawk  and  Hudson  P.  P. 
Co.,  2  Denio,  609,  613. 

§  3.  Of  fictitious  or  wager  suits.  Courts  of  justice  were  estab- 
lished for  the  purpose  of  deciding  really  existing  questions  of 
right  between  parties  who  in  good  faith  submit  a  case  to  the 
court  for  a  decision.  And  the  court  will  not  try  an  action  upon 
a  wager  or  an  abstract  question  of  law,  or  judicial  practice,  not 
arising  out  of  circumstances  really  existing,  in  which  the  parties 
have  a  legal  interest.  Henkin  v.  Guerss,  12  East,  247 ;  S.  C,  2 
Camp.  N.  P.  408.  "  I  have  been  very  unwilling  to  proceed  to 
the  decision  of  this  case  at  all.  It  appears  to  me  to  bear  strong 
evidence,  upon  the  face  of  it,  of  being  a  mere  feigned  case.  It  is 
our  duty  to  decide  on  the  rights,  but  not  on  the  speculations  of 
parties.  My  confidence,  however,  in  the  respectable  gentlemen 
who  have  been  engaged  for  the  parties,  has  induced  me  to  aban- 
don my  scruples,  in  the  belief  that  they  would  never  consent  to 
impose  a  mere  feigned  case  upon  this  court."  Fletcher  v.  Peck^ 
6  Cranch,  87,  147,  148.  Even  at  the  common  law,  actions  that 
are  founded  upon  wagers  which  are  foolish,  or  tend  to  annoy 


142  OF  ACTIONS  FOUNDED  UPON  TORTS. 

others,  to  waste  the  time  of  the  court,  or  to  outrage  decency,  will 
be  discountenanced  and  refused  a  trial.  Eltliam  v.  Kingsmariy 
1  B.  &  Aid.  683  ;  Da  Costa  v.  Jones,  Cowp.  729. 

A  court  will  not  take  cognizance  of  an  action  brought  in  the 
name  of  a  fictitious  person  for  the  purpose  of  indirectly  affecting 
a  pending  controversy  ;  and  the  bringing  of  such  an  action  is  a 
contempt  of  court.  Smith  v.  Junction  Railway  Co.,  29  Ind.  546 ; 
see,  also,  Coxe  v.  Phillips,  Rep.  Temp.  Hardw.  237  ;  Brewster  v. 
Kitchin,  Comb.  425.  "  It  is  the  office  of  courts  of  justice  to  de- 
cide the  rights  of  persons  and  of  property,  when  the  persons 
interested  cannot  adjust  them  by  agreement  between  themselves, 
and  to  do  this  upon  the  full  hearing  of  both  parties.  And  any 
attempt,  by  a  mere  colorable  dispute,  to  obtain  the  opinion  of 
the  court  upon  a  question  of  law  which  a  party  desires  to  know 
for  his  own  interest  or  his  own  purposes,  where  there  is  no  real 
and  substantial  controversy  between  those  who  appear  as  adverse 
parties  to  the  suit,  is  an  abuse  which  courts  of  justice  have 
always  reprehended,  and  treated  as  a  punishable  contempt  of 
court."     LordY.  Veazie,  8  How.  (U.  S.)  255. 

When  an  action  will,  or  will  not  lie  upon  a  wager.  See  Wager  ; 
see,  also,  Oodsall  v.  Bolder o,  9  East,  72;  2  Smith's  Lead.  Cas. 
(292),  262. 

§  4.  Illegal  or  wrongful  acts.  Every  action  brought  for  a  tort 
is  founded  upon  some  illegal,  wrongful  or  fraudulent  acts  of  the 
defendant.  And,  since  there  is  no  limit  to  the  number  and  va- 
riety of  tortious  acts,  no  attempt  will  be  made  to  explain  the  entire 
subject ;  but  a  few  cases  illustrative  of  the  general  principle  may 
be  usefully  given.'  One  who  does  a  wrongful  act,  or  a  rightful 
act  in  a  negligent  or  wrongful  manner,  to  the  injury  of  another, 
is  liable  to  an  action,  as  where,  by  reckless  and  noisy  driving  on 
a  highway,  he  frightens  a  horse  lawfully  pasturing  at  the  side  of 
the  highway,  and  causes  him  to  run  away  and  destroy  a  buggy. 
Howe  V.  Young,  16  Ind.  312.  So,  where  a  person  takes  measures 
to  protect  his  property  from  imminent  danger  of  a  flood,  but 
does  not  use  ordinary  care,  and  consequently  causes  injury  to 
the  property  of  other  persons,  he  is  liable.  Noyes  v.  Shepherd, 
30  Me.  173.  So,  one  who  obstructs  a  sewer,  in  violation  of  a  city 
ordinance,  is  liable  for  the  consequences  of  his  act.  Owings  v. 
Jones,  9  Md.  108.  So,  one  who  has  a  right  of  way  over  the  land 
of  another  is  liable  to  an  action  if  he  makes  an  unauthorized  use 
of  such  land,  even  though  the  owner  does  not  sustain  any  actual 
damage.    Appleton  v.  Fullerton,  1  Gray  (Mass.),  186. 


OF  ACTIONS  FOUNDED  UPON  TORTS,  143 

One  who  borrows  a  safe  which  has  a  combination  lock  and 
key,  and  returns  it  with  the  key,  but  locked  upon  a  com- 
bination known  only  to  himself,  and  he  refuses,  upon  demand,  to 
furnish  the  owner  with  the  combination  upon  which  it  was  locked, 
is  liable  to  an  action  if  the  safe  is  thus  rendered  worthless  to  the 
owner.    Neff  v.  Webster,  15  Wis.  283. 

A  person  who,  in  the  exercise  of  a  legal  right,  does  an  injury 
to  the  property  of  another,  is  not  liable  for  the  damage  unless  it 
was  caused  by  his  want  of  the  ordinary  care  and  skill  exercised  in 
like  cases.  Thomasson  v.  Agneio,  24  Miss.  93.  The  prevention 
of  the  doing  of  an  unlawful  and  unauthorized  act  does  not,  of 
itself,  constitute  a  good  cause  of  action  on  the  part  of  the  would- 
be  and  incipient  wrong-doer.  Bangor,  etc.,  M.  R.  Co.  v.  Smith, 
49  ]\Ie.  9, 13.  There  is  no  principle  known  to  the  law,  which  will 
enable  a  person,  individual  or  corporation,  to  claim  immunity 
for  his  wrongful  acts  done  to  the  injury  of  another's  rights,  on 
the  ground  that  his  acts  were  for  the  public  interest.  Henderson 
V.  Railroad  Co.,  17  Texas,  560;  Trenton,  etc.,  Co.  v.  Raff,  36  N. 
J.  L.  335. 

An  action  on  the  case  lies  for  maliciously  suing  out  an  attach- 
ment and  seizing  the  goods  of  the  debtor,  even  though  there  was 
at  the  time  some  indebtedness,  where  the  indebtedness  claimed 
greatly  exceeds  the  amount  due,  and  where  the  levy  is  grossly 
excessive,  and  the  object  is  extortion  and  oppression.  Spaids 
V.  Barrett,  57  111.  289;  S.  C,  11  Am.  Rep.  10.  So,  bringing  an 
action  in  the  name  of  another  person  without  his  authority  is  an 
unlawful  act,  and  subjects  the  wrong-doer  to  an  action.  Foster 
V.  Dow,  29  Me.  442  ;  and  see  Cotter  ell  v.  Jones,  11  C.  B.  713.  But 
the  person  in  whose  name  such  suit  is  brought  may  adopt  it. 
Craig  v.  Twomey,  14  Gray,  486. 

§  5.  Rightful  acts  no  ground  of  action.  A  rightful  and  bona 
fide  exercise  of  a  lawful  power  does  not  furnish  any  basis  for 
an  action.  McMillen  v.  Staples,  37  Iowa,  532.  An  act  done  un- 
der lawful  authority,  if  done  in  a  proper  manner,  can  never  sub- 
ject the  party  to  an  action,  whatever  consequences  may  follow; 
nor  will  a  man  be  answerable  for  the  consequences  of  enjoying 
his  own  property  in  the  way  in  which  such  property  is  usually 
enjoyed,  unless  an  injury  has  resulted  to  another  from  the  want 
of  proper  care  or  skill  on  his  part.  Radcliff''  s  Exrs.  v.  Mayor ^ 
etc.,  of  Brooklyn,  4  N.  Y.  (4  Comst.)  195,  200;  Rockwood  v.  Nel- 
son, 11  Gush.  (Mass.)  221. 

A  person  who  places  a  steam-boiler  upon  his  premises  and 


144  OF  ACTIONS  FOUNDED  UPON  TORTS. 

operates  it  with  care  and  skill,  so  that  it  is  not  a  nuisance,  is  not, 
in  the  absence  of  proof  of  negligence  or  fault  on  his  part,  liable 
for  damages  to  his  neighbor  caused  by  the  explosion  of  the 
boiler.     Losee  v.  Buchanan,  51  N.  Y.  (6  Sick.)  476. 

A  man  may  lawfully  dig  on  his  own  land,  although  he  cannot 
lawfully  do  so  in  such  a  manner  as  to  cause  the  land  adjoining ' 
to  fall  in  the  pit  dug  by  him.  Farrand  v.  Marsliall,  21  Barb. 
409;  Austin  v.  Hudson  R.  R.  Co.,  25  N.  Y.  (11  Smith)  334,  346  ; 
Ryckman  v.  Gillis,  6  Lans.  79;  People  ex  rel.  Barlow  v.  Canal 
Board,  2  N.  Y.  S.  C.  R.  (T.  &  C.)  275. 

The  owner  of  one  side  of  a  party  wall,  between  two  adjoining 
houses,  may,  if  the  wall  becomes  dilapidated  and  unsafe,  upon 
reasonable  notice  to  the  tenant  of  the  opposite  building,  take 
down  and  rebuild  such  wall  in  a  proper  manner.  Partridge  y. 
Gilbert^  15  N.  Y.  (1  Smith)  601,  612.  So  he  may  increase  the 
hight  of  the  wall,  if  that  can  be  done  without  detriment  to  the 
wall  or  to  the  property  of  the  adjacent  owner.  BrooJcs  v.  Curtis, 
50  N.  Y.  (5  Sick.)  639  ;  S.  C,  10  Am.  Rep.  545.  Or  he  may  un- 
derpin the  foundation,  sink  it  deeper,  and  increase,  within  the 
limits  of  his  own  lot,  the  thickness,  length,  or  hight  of  the  party 
wall,  if  he  can  do  so  without  injury  to  the  building  on  the  ad- 
joining lot.  Eno  V.  Del  Vecchio,  4  Duer,  53 ;  see  Daly  v.  Grimly, 
49  How.  520.  The  owner  of  a  building,  erected  on  the  line  of  his 
lot,  cannot,  by  lapse  of  time,  acquire  a  prescriptive  right  to  the 
lateral  support  of  the  adjacent  soil.  Mitchell  v.  Mayor,  etc.,  of 
Rome,  4Q  Ga.  19  ;  S.  C,  15  Am.  Rep.  669. 

The  owner  of  land  may  lawfully  set  fire  to  his  fallow  ground, 
and  if  he  is  not  guilty  of  negligence  in  the  mode  of  doing  it,  no 
action  lies  for  any  injury  done  to  his  neighbor' s  woodland,  crops, 
or  buildings,  by  fire.  Clark  v.  Foot,  8  Johns.  421 ;  Stewart  v. 
Hawley,  22  Barb.  619 ;  Calkins  v.  Barger,  44  id.  424. 

A  landowner  may  open  and  work  a  coal  mine  in  his  own  land, 
though  it  may  injure  the  house  which  an  adjoining  owner  has 
built  on  the  line  of  his  land.  Partridge  v.  Scott,  3  Mees.  & 
Wels.  220. 

He  may  do  the  same  thing,  even  though  it  cuts  off  an  under- 
ground stream  of  water,  which  before  supplied  his  neighbor's 
well.  Acton  v.  Blundell,  12  Mees.  &  Wels.  324 ;  Ellis  v  .  Dun- 
can, 21  Barb.  230  ;  11  How.  515  ;  50  Barb.  325.  He  may  lawfully 
dig  a  well  upon  his  own  premises,  although  it  intercepts  the 
percolation  or  underground  currents  of  water,  and  thus  prevents 
the  water  from  reaching  the  springs  or  open  running  stream  on 


OF  ACTIONS  FOUNDED  UPON  TORTS.  145 

the  land  of  another  person.  Village  of  Delhi  v.  Youmans,  45 
N.  Y.  (6  Hand)  362 ;  S.  C,  6  Am.  Rep.  100 ;  Bliss  v.  Greeley,  45 
N.  Y.  (6  Hand)  671 ;  S.  C,  6  Am.  Rep.  157. 

He  may  build  upon  his  land,  although  it  obstructs  or  shuts 
out  the  light  from  his  neighbor's  house.  See  Ancient  Lights, 
and  Parker  v.  Foote,  19  Wend.  309 ;  MaTian  v.  Brown,  13  id. 
261. 

§  6.  Legislative  authority  for  acts  done.  As  a  general  rule,  no 
action  lies  for  an  act  done  by  virtue  of  a  statute  authority,  if  the 
statute  is  strictly  pursued,  and  there  is  no  negligence,  or  want 
of  due  care  and  skill  in  performing  the  act.  Vaughan  v.  Taff 
Vale  Railway  Co.,  5  H.  &  N.  679 ;  8  id.  752,  note ;  Chapman  v. 
Atlantic  &  St.  Lawrence  R.  R.  Co.,  37  Me.  92  ;  Burroughs  v. 
Housatonic  R.  R.  Co.,  15  Conn.  131,  133 ;  Rood  v.  New  York  & 
Erie  R.  R.  Co.,  18  Barb.  80;  Herring  v.  Wilmington  &  Raleigh 
R.  R.,  10  Ired.  402 ;  First  Baptist  Church  v.  Utica  &  Schenec- 
tady R.  R.  Co.,  6  Barb.  313,  318  ;  Sunlury  &  Erie  R.  R.  Co.  v. 
Hummell,  27  Penn.  St.  99  ;  Morris,  etc.,  R.  R.  Co.  v.  Newark,  10 
N.  J.  Eq.  (2  Stockt.)  352. 

But  if  the  statutory  powers  are  exceeded,  or  are  not  strictly 
pursued,  or  the  acts  authorized  to  be  done  are  carelessly  and 
negligently  done,  an  action  lies  to  recover  the  damages  resulting. 
Brownlow  v.  Metropolitan  Board  of  Works,  13  C.  B.  (N.  S.)  768; 
16  id.  546;  Freemantlev.  London  &  North-western  Railway  Co., 
10  C.  B.  (N.  S.)  89  ;  Fero  v.  Buffalo  &  State  Line  R.  R.  Co.,  22  n! 
Y.  (8  Smith)  209 ;  Huyett  v.  Philadelphia  &  Reading  R.  R.  Co., 
23  Penn.  St.  373. 

The  appropriation  of  land  for  a  canal,  by  the  authorized  agents 
of  the  State,  confers  a  right  to  enter  upon  and  use  the  soil, 
although  the  absolute  fee  does  not  vest  in  the  State  till  the  ap- 
praisement of  damages.  Baker  y.  Johnson,  2  Hill,  342;  Rex- 
ford  V.  Knight,  11  N.  Y.  (1  Kern.)  308. 

But  the  authority  conferred  upon  the  canal  commissioners  to 
enter  upon  and  take  possession  of  lands  of  an  individual  for  the 
construction  of,  or  for  the  temporary  use  of,  the  canals,  cannot 
be  delegated  unless  there  be  special  power  of  substitution.  St. 
Peter  v.  Denison,  58  N.  Y.  (13  Sick.)  416 ;  Lyon  v.  Jerome,  26 
Wend.  485.  And  a  contractor  cannot  justify  a  trespass  upon 
private  lands  because  such  act  was  necessary  in  the  performance 
of  his  contract.  lb.  Casting  stones  and  earth  upon  the  lands  of 
an  adjoining  land  proprietor,  by  means  of  a  blast  from  the  bed 

Vol.  I.— 19 


146  OF  ACTIONS  FOUNDED  UPON  TORTS. 

of  the  canal,  by  a  contractor  with  the  State,  is  a  trespass,  even 
though  the  work  was  done  without  negligence.  lb. 

The  acts  and  things  authorized  by  statute  to  be  done  are 
numerous  and  varied,  and  no  attempt  will  be  here  made  to 
enumerate  them,  as  many  of  them  will  be  noticed  in  various 
parts  of  this  work. 

§  7.  Consent  of  injured  party.  It  is  a  general  rule  of  law  that 
no  person  can  maintain  an  action  for  a  wrong  where  he  has  con- 
sented to  the  act  which  occasions  his  loss.  Broom's  Leg.  Max. 
268;  Illinois  Central  E.  E.  Co.  Y.Allen,  39  111.  205;  Walker  y. 
Fills,  24:  Pick.  191;  FJiillips  v.  Woosler,  36  N.  Y.  (9  Tiff.)  412;  3 
Abb.  (N.  S.)  475;  2  Trans.  App.  254;  State  Y.Beck,  1  Hill  (S.  C), 
863;  Pillow  v.  BusTinell,  5  Barb.  156. 

§  8.  Demand  or  notice  before  suit  brought.  In  actions  for  torts 
there  are  many  cases  in  which  no  notice  or  demand  is  requisite 
before  bringing  the  action.  Again,  there  are  numerous  instances 
in  which  a  demand  is  necessary  for  the  purpose  of  completing 
the  right  of  action.  In  replevin,  and  in  trover,  a  demand  is 
necessary  in  some  cases,  and  unnecessary  in  others.  See  Re- 
plevin ;  Trover ;  Nuisance ;  Ejectment ;  Injunctions  In  the  differ- 
ent titles  the  cases  in  which  a  demand  is  required  before  suit 
brought  will  be  sufficiently  noticed. 

§  9.  Splitting  demands.  The  objection  to  splitting  demands, 
and  bringing  separate  actions  upon  the  several  parts,  is  usually 
made  in  relation  to  actions  founded  upon  contracts.  See  Split- 
ting Cause  of  Action. 

Where  there  has  been  a  trespass  in  taking  personal  property, 
or  an  unlawful  conversion  of  it,  by  one  single  indivisible  act  in 
relation  to  the  several  articles  taken  or  converted,  there  is  but  a 
single  cause  of  action,  and  the  plaintiff  cannot  split  his  claim  for 
damages,  by  bringing  separate  actions  of  trespass  or  trover  for 
each  particular  article  seized  or  converted;  and,  therefore,  a  re- 
covery for  one  part  or  parcel  of  the  goods  is  a  bar  to  an  action 
for  another  part  or  parcel.  Farrington  v.  Payne,  15  Johns. 
432 ;  •Ilerriter  v.  Porter,  23  Cal.  385  ;  Brannenhurg  v.  India- 
napolis, etc.,  R.  R.  Co.,  13  Ind.  103;  Bates  v.  Quattlebom,  2 
Nott  &  McCord  (S.  C),  205. 

§  10.  Of  damages  not  caused  by  wrongs  not  actionable.  To 
constitute  a  tort,  two  things  must  concur,  actual  or  legal  dam- 
age to  the  plaintiff,  and  a  wrongful  act  by  the  defendant.  But 
it  is  not  every  substantial  wrong,  still  less  every  imaginary  griev- 
ance, which  affords  a  right  of  action  for  redress.    Nor  is  it  true, 


OF  ACTIONS  FOUNDED  UPON  TORTS.  147 

that  for  every  kind  of  damage  or  loss  occasioned  by  the  act  of  an- 
other, a  remedy  is  given  by  the  law.  It  not  unfrequently  happens, 
that  damage,  palpable  and  undeniable  though  it  be,  is,  in  tech- 
nical phraseology,  damnum  sine  injuria^  that  is,  damage,  unac- 
companied by  any  tortious  or  wrongful  act  whereof  cognizance 
can  be  taken  in  a  court  of  justice.  Broom's  Com.  on  Com.  Law, 
75. 

The  word  injuria  is  employed  as  signifying  a  "  legal  wrong," 
that  is,  a  wrong  cognizable  or  recognized  as  such  by  the  law. 
The  word  c^am7i?^?72.  is  used  as  signifying  "damage,"  not  neces- 
sarily pecuniary,  or  perceptible,  but  appreciable,  and  capable,  in 
legal  contemplation,  of  being  estimated  by  a  jary.  The  propo- 
sition, damnum  sine  injuria^  is,  that  damage,  unaccompanied 
by  legal  wrong,  is  not  actionable  at  law. 

A  person  may  sustain  serious  damage  by  the  acts  of  another, 
and  yet,  if  it  be  the  result  of  inevitable  accident,  or  of  a  lawful 
act,  done  in  a  lawful  manner,  without  any  carelessness  or  negli- 
gence, there  is  no  legal  injury,  and  no  tort  giving  rise  to  an 
action  for  damages,  ante.  One  who  is  acting  in  self-defense, 
and  in  good  faith,  in  protecting  himself  from  the  wrongful  acts 
of  another,  will  not  be  liable  to  a  third  person,  who  is  injured 
by  such  acts  of  self-defense.  Richer  v.  Freeman.,  50  N.  H.  420; 
S.  C,  9  Am.  Rep.  267;  Scott  v.  Shepherd,  2  W.  Bla.  892;  S.  C, 
3  Wils.  403;  1  Smith's  Lead.  Cas.(549),  754.  See  Vandenburgh 
v.  Tricax,  4  Denio,  464.  For  a  further  illustration  of  the  acts  one 
may  do  without  liability  to  an  action,  see  ante,  §  5. 

Judges  of  the  superior  courts  of  record  are  not  liable  to  an- 
swer personally  for  acts  done  by  them  in  a  judicial  capacity,  or 
for  errors  of  judgment.  Yates  v.  Lansing,  5  Johns.  282;  9  id. 
895;  CunningJiam  v.  Bucklin,  8  Cow.  178',  and  the  English  courts 
.hold  that  at  common  law  no  action  will  lie  against  a  judge  of 
one  of  the  superior  courts  for  a  judicial  act,  though  it  be 
alleged  to  have  been  done  maliciously  and  corruptly.  Fray  v. 
Blackburn,  3  B.  &  S.  576;  Thomas  v.  Ghurton,  2  id.  475. 

In  this  country  the  same  rule  prevails  in  all  of  the  States. 
Randall  v.  Brigham,  7  Wall.  523;  Rowe  v.  Mason,  14  Iowa, 
510;  Downing  v.  HerricTc,  47  Me.  462;  Robbins  v.  Gorham,  25 
N.Y.  (11  Smith)  538;  26  Barb.  586;  Burnham  v.  Stevens,  33  N.  H. 
247;  Ambler  v.  Church,  1  Root,  211;  Pratt  v.  Gardner,  2  Cush. 
(Mass.)  63. 

§11.  Of  wrong  without  actual  damage,  though  actionable.  The 
proposition  injuria  sine  damno  frequently  suffices  as  the  founda- 


148  OF  ACTIONS  FOUNDED  UPON  TOETS. 

tion  at  an  action  ;  the  phrase  being  nsed  to  indicate  a  wrong  — 
remediable  at  law  —  though  not  productive  of  actual  damage  to 
the  complainant.  The  phrase  applies  only  where  a  legal  injury- 
has  been  done,  or  where  a  legal  right  has  been  violated.  To  illus- 
trate this  principle,  it  is  well  settled  that  a  judge  or  inspector  of 
elections  who  wrongfully  and  maliciously  refuses  to  receive  the 
vote  of  an  elector  is  actionable.  Ashhy  v.  White,  2  Ld.  Raym. 
938  ;  S.  C,  1  Smith's  Lead.  Gas.  (342),  455  ;  Jenkins  v.  Waldron, 
11  Johns.  114;  Blanchard  v.  Stearns,  5  Mete.  (Mass.)  298; 
Wheeler  v.  Patterson,  1  N.  H.  88 ;  Swift  v.  Chamterlain,  5 
Conn.  537  ;  Carter  v.  Harrison,  5  Blackf.  138  ;  State  v.  Porter^ 
4  Harr.  (Del.)  536 ;  Pail  v.  Potts,  8  Humph.  225.  A  contin- 
uing tortious  act  which  injuriously  affects  the  property  of 
another,  is  actionable,  even  though  no  appreciable  damage  results 
from  it,  ante,  40.  One  who  stops  on  the  sidewalk  of  a  street,  in 
front  of  a  man's  house,  and  remains  there,  using  toward  the 
owner  insulting  and  abusive  language,  is  liable  to  an  action. 
Adams  v.  Rivers,  11  Barb.  390, 398.  Bringing  an  action  in  the  name 
of  another  person,  without  his  consent,  is  actionable,  ante^  143, 
§  4.  An  action  lies  against  a  banker,  who  has  sufficient  funds  in 
his  hands  belonging  to  a  customer,  but  who  refuses  to  cash  the 
check  of  the  latter,  even  though  he  did  not  sustain  any  actual 
loss  or  damage.  Marzetti  v.  Williams,  1  B.  &  Ad.  415  ;  Gum- 
ming V.  Shand,  5  H.  &  N.  95  ;  Or  ay  v.  Johnston,  L.  R.,  3  H.  L. 
1 ;  Palin  v.  Steward,  14  C.  B.  595.  Trespass  lies  for  an  entry 
upon  the  land  of  another,  though  no  real  damage  be  occasioned 
thereby,  for  repeated  acts  of  going  over  the  land  might  event- 
ually be  relied  upon  as  evidence  of  title  to  do  so.  Tmyman  v. 
Knowles,  13  C.  B.  222.  An  action  lies  for  an  unlawful  diver- 
sion of  the  water  from  the  plaintiff's  mill,  even  though  no  actual 
damage  be  shown,  as  such  use  might  in  time  ripen  into  a  right.. 
Blanchard  v.  Baker,  8  Greenl.  (Me.)  253 ;  Rochdale  Canal  Co.  v. 
King,  14  Q.  B.  122,  136 ;  Wehh  v.  Portland  Manufacturing  Co., 
3  Sumner,  189  ;  Wilts  and  Berks  Canal  Navigation  Co.  v.  Swin- 
don Waterworks  Co.,  L.  R.,  9  Ch.  App.  451 ;  43  L.  J.  Chanc.  393  ; 
30  L.  T.  (N.  S.)  443;  22  W.  R.  444.  So  of  a  nuisance  in  obstructing 
the  works  of  a  canal  company.  Delaware  and  Hudson  Canal 
Co.  V.  Torreyi  33  Penn.  St.  143,  or  for  cutting  and  taking  away 
the  grass  which  grows  on  the  side  of  a  highway  laid  out  over  the 
plaintiff's  land.  Cole  v.  Brew,  44  Yt.  49  ;  S.  C,  8  Am.  Rep.  363. 
§  12.  Damages  when  too  remote,  and  when  not.  There  are 
cases  in  which  injuries  have  been  done  that  were  productive  of 


OF  ACTIONS  FOUNDED  UPON  TOETS.  149 

damage  to  an  other,  which,  in  legal  contemplation,  were  too  re- 
mote to  enable  the  injured  party  to  redress.  Thus  in  an  action 
for  slander,  where  special  damages  are  necessary  to  sustain  the 
action,  it  is  not  sufficient  to  prove  a  mere  wrongful  act  of  a  third 
person,  induced  by  the  slanderer,  such  as  that  he  dismissed  the 
plaintiff  from  his  employ  before  the  end  of  the  term  for  which 
they  had  contracted.  Vicars  v.  Wilcocks,  8  East,  1 ;  S.  C,  2  Smith's 
Lead.  Gas.  (460),  484,  where  numerous  cases  are  cited.  See 
Sneesby  v.  Lancashire^  etc.^  Railway  Co.,  L.  R.,  9  Q.  B.  263  ;  S. 
C,  8  Eng.  E-,  337,  in  which  the  damages  were  held  not  to  be  too 
remote  in  an  action  for  negligence  ;  see,  also,  Kelly  v.  Parting- 
ton, 6  B.  &  Ad.  645.  A  husband  cannot  maintain  an  action  for 
damages  resulting  from  the  illness  and  mental  depression  of  his 
wife  arising  from  the  speaking  of  her  certain  defamatory  words, 
not  actionable  in  themselves.  Wilson  v.  Goit  17  N.  Y.  (3  Smith) 
442.    See  Bassell  v.  Elmore,  48  N.  Y.  (3  Sick.)  561. 

The  special  damage  necessary  to  support  an  action  for  defam- 
atory words,  not  actionable  in  themselves,  must  result  from  an 
injury  to  the  plaintiff's  reputation,  which  affects  the  conduct  of 
others  toward  him ;  his  mental  distress,  pliysical  illness  and 
inability  to  labor,  occasioned  by  the  slander,  are  not  such 
natural  and  legal  consequences  of  the  words  spoken,  as  to  give 
an  action.  Terwilliger  v.  Wands,  17  N.  Y.  (3  Smith)  54.  A 
general  allegation  in  a  complaint  that  the  slanderous  charge 
injured  the  plaintiff  in  her  good  name,  and  caused  her  relations 
and  friends  to  slight  and  shun  her,  does  not  set  forth  sufficient 
special  damage.    Bassell  v.  Elmore,  4^%  N.  Y.  (3  Sick.)  561. 

An  action  does  not  lie  in  favor  of  the  manager  of  a  theater 
against  one  who  publishes  a  libel  on  an  opera  singer,  who  had 
been  engaged  to  sing,  but  was  deterred  from  doing  so  by  reason 
of  the  publication  of  the  libel,  and  for  fear  that  the  libel  would 
induce  third  persons  to  assault  her.  Ashley  v.  Harrison,  1  Esp. 
49  ;  Peake,  194.  So  no  action  can  be  maintained  by  a  parent 
against  a  town  school  teacher  for  refusing  to  instruct  the  children 
of  the  former.  Spear  v.  Cummings,  23  Pick.  224,  nor  for  admit- 
ting colored  children  as  scholars.  Stewart  v.  Southard,  17  Ohio, 
402. 

One  who  has  agreed  to  support  certain  paupers,  in  sickness  or 
in  health,  for  a  specified  time,  for  a  fixed  sum,  cannot  maintain 
an  action  against  a  third  person   for  assaulting  and  beating  one 
of  the  paupers,  and  thus  causing  extra  expense  for  his  cure  and* 
support.    Anthony  v.  Slaid,  11  Mete.  (Mass.)  290. 


150  PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY. 

No  action  lies  by  a  creditor  against  a  third  person  who  induces 
a  debtor  not  to  pay,  and  an  officer  not  to  collect,  a  demand  which 
was  placed  in  his  hands  for  that  purpose  {Piatt  v.  Potts,  13  Ired. 
455) ;  nor  can  a  creditor  maintain  an  action  against  a  third  per- 
son, for  aiding  the  debtor  of  the  former  to  remove  with  his  prop- 
erty out  of  the  State.  MattTiews  v.  Pass,  19  Ga.  141.  The  com- 
missioner' s  court  of  a  county  cannot  maintain  an  action  against 
the  keeper  of  a  poor-house  for  debauching. and  getting  with  child 
one  of  the  inmates.  Commissioners,  etc.,  v.  McCann,  23  Ala. 
599.  An  action  does  not  lie  against  a  witness  for  testifying 
falsely  in  a  cause.  Grove  v.  Branderiburg,  7  Blackf.  234 ;  Dun- 
lap  V.  Glidden,  31  Me.  435  ;  Damport  v.  Sympson,  Cro.  Eliz.  520. 
A  man  who  mounts  a  pile  of  flag-stones  in  a  street,  for  the  pur- 
pose of  making  a  speech,  and  thus  attracts  a  crowd  of  persons, 
some  of  whom  also  get  upon  the  stones  and  break  them,  is  not 
liable,  as  a  necessary  legal  conclusion,  for  the  damages  ;  but  the 
question  whether  his  act  was  the  proximate  or  the  remote  cause 
of  the  injury  is  for  the  jury.  Fairhariks  v.  Kerr,  70  Penn.  St. 
86 ;  S.  C,  10  Am.  Rep.  664. 


TITLE  III. 

.  OF  PEI^CIPLES  RELATING  TO  SUITS  IN  EQUITY. 

ARTICLE  I. 

RULES  AND  ILLUSTRATIONS. 

Section  1.  Courts  of  equity  do  not  act  when  a  legal  remedy 
exists.  Some  of  the  rules  applicable  to  courts  of  equity  have 
already  been  pointed  out,  ante,  20.  But  there  are  some  general 
principles  that  may  properly  be  more  fully  noticed  in  this  place. 
In  those  countries  or  States  in  which  the  rules  of  law,  and  the 
principles  of  equity  are  administered  by  distinct  and  separate 
courts,  it  is  a  well-settled  general  rule,  that  courts  of  equity  have 
jurisdiction  in  cases  of  rights  which  are  recognized  and  protected 
by  the  municipal  jurisprudence,  and  where  a  plain,  adequate 
and  complete  remedy  cannot  be  had  in  the  courts  of  common 
law.  The  remedy  must  be  plain  ;  for,  if  it  be  doubtful  and  ob- 
^scure  at  law,  equity  will  assert  a  jurisdiction.  It  must  be  ade- 
quate; for,  if  at  law,  it  falls  short  of  what  the  party  is  entitled 
to,  that  founds  a  jurisdiction  in  equity.    It  must  be  complete; 


PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY.    151 

that  is,  it  must  attain  the  full  end  and  justice  of  the  case.  It 
must  reacli  the  whole  mischiefs  and  secure  the  whole  right  of  the 
party  in  a  perfect  manner,  at  the  present  time,  and  in  future  ; 
otherwise,  equity  will  interfere  and  give  such  relief  and  aid  as 
the  exigency  of  the  particular  case  may  require.  The  jurisdic- 
tion of  a  court  of  equity  is,  therefore,  sometimes  concurrent  with 
the  jurisdiction  of  a  court  of  law  ;  it  is  sometimes  exclusive  of 
it ;  and  it  is  sometimes  auxiliary  to  it. 

The  inadequacy  of  legal  remedies  has  frequently  been  the  rea- 
son assigned  for  equitable  jurisdiction  and  interference.  And, 
on  the  other  hand,  the  sufficiency  of  remedies  at  law  have  fur- 
nished grounds  to  courts  of  equity  in  declining  to  exercise  any 
jurisdiction  in  the  particular  matter  or  case.  The  remedy  at 
law  must  \)Q  plain,  to  oust  courts  of  equity  of  jurisdiction,  or  to 
cause  them  to  decline  acting  in  the  matter.  The  existence  of  a 
merely  problematical  remedy  at  law  does  not  deprive  a  party  of 
his  remedy  in  equity.  Edsell  v,  Briggs,  20  Mich.  429.  It  is  no 
bar  to  proceedings  in  equity  that  the  plaintiff  may,  by  great 
circuity  and  at  great  inconvenience,  at  last  secure  a  remedy  at 
law ;  his  remedy  must  be  plain  and  adequate.  Carlton  v.  Felder, 
6  Rich.  Eq.  (S.  C.)  58,  67,  A  court  of  equity  will  intervene  in 
the  administration  of  an  estate  where  the  bill  shows  an  irrepar- 
able injury  to  be  impending,  against  which  the  probate  court  is 
powerless  to  grant  relief,  as  where  an  administrator  withholds 
proceeds,  has  been  adjudged  a  bankrupt,  and  owes  debts  of  a 
fiduciary  character.  Haag  v.  Sparks,  27  Ark.  594.  A  remedy 
in  a  court  of  law  is  the  only  "  remedy  at  law-"  which  is  suffici- 
ent to  oust  a  court  of  equity  of  its  jurisdiction  ;  and,  when  stock 
in  a  corporation  is  transferred,  without  consideration,  for  the 
fraudulent  purpose  of  controlling  an  election,  an  injunction  is 
the  proper  remedy  to  prevent  the  transferees  from  voting.  Wehh 
V.  Ridgely,  38  Md.  364,  A  bill  which  shows  that  the  defendant 
has  wrongfully  removed  a  monument  which  the  complainant  had 
erected  to  the  memory  of  deceased  persons,  will  be  retained  ;  for, 
since  the  property  in  question  is  of  a  peculiar  character  for 
which  a  full  compensation  in  damages  could  not  be  obtained  in 
a  court  of  law,  a  court  of  equitj''  has  jurisdiction  to  enjoin  any 
further  interference  with  the  monument,  if  not  to  compel  its 
restoration.    McCollwn  v.  Morrison,  14  Fla.  414. 

Again,  a  court  of  equity  will  not  be  ousted  of  jurisdiction 
unless  the  remedy  at  law  is  adequate.  To  render  a  bill  in  equity 
demurrable  on  the  ground  that  the  complainant  has  a  remedy  at 


152  PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY. 

law,  that  remedy  must  appear  to  be  adequate  and  complete. 
Scott  V.  Scott,  33  Ga.  102  ;  Witter  v.  Arnett,  8  Ark.  (3  Eng.)  57. 

Although  a  remedy  at  law  may  exist,  yet  if  a  complaint  is  one 
of  equitable  jurisdiction,  chancery  will  sometimes  take  cogni- 
zance of  it,  where  its  aid  is  more  effectual.  Morris  v.  Thomas, 
17  111.  112  ;  Babcoclc  v.  McCamant,  53  id.  214 ;  RutJierford  v. 
Jones,  14  Ga.  521  ;  Jordan  v.  Faircloth,  27  id.  372  ;  Clouston  v. 
Shearer,  99  Mass.  209. 

A  bill  in  equity  will  not  lie  for  the  recovery  of  money  held  in 
trust,  when  the  plaintiff  has  a  plain,  adequate  and  complete 
remedy  by  an  action  at  law  for  money  had  and  received.  CrooTcer 
V.  Rogers,  58  Me.  339. 

A  bill  in  equity  will  be  dismissed  if  the  record  shows  that  the 
complainant  has  a  complete  and  adequate  remedy  at  law. 
Seago  v.  Harrison,  42  Ga.  189  ;  Miller  v.  Neiman,  27  Ark.  233. 
A  court  of  equity  will  not  grant  relief  by  injunction  or  new  trial, 
if  the  party  seeking  relief  has  an  adequate  remedy  by  motion 
to  the  court  in  which  the  judgment  was  obtained.  Lyme  v.  Allen, 
51  N.  H.  242 ;  Day  v.  Cummings,  19  Vt.  496 ;  Musgrove  v. 
Chambers,  12  Tex.  32. 

A  court  of  equity  will  not  interfere  in  a  case  where  the 
aggrieved  party  has  a  remedy  by  appeal.  Hazelhurst  v.  Mayor, 
etc.,  of  Baltimore,  37  Md.  199.  An  objection  that  the  complain- 
ant has  an  adequate  remedy  at  law  ought  to  be  made  promptly, 
or  it  may  be  disregarded.  Sexton  v.  PiJce,  13  Ark.  193  ;  Oum- 
ming  v.  Mayor,  etc.,  of  Brooklyn,  11  Paige,  596 ;  Jennings  v. 
Whittemore,  2  N.  Y.  S.  C.  (T.  &  C.)  377,  379.  If  such  a  defense 
is  not  set  up  in  the  answer,  it  will  not  be  available  at  the  hear- 
ing.    Trnscott  v.  King,  6  N.  Y.  (2  Seld.)  147. 

§  2.  Equity  follows  the  law.  It  is  a  common  maxim,  that 
equity  follows  the  law  ;  and,  it  is  susceptible  of  several  inter- 
pretations. One  of  these  may  be,  that  equity  adopts  and  fol- 
lows the  rules  of  law  in  all  those  cases  in  which  such  rules  are, 
in  terms,  applicable.  Another  may  be,  that  equity,  in  dealing 
with  cases  of  an  equitable  nature,  adopts  and  follows  the  anal- 
ogies furnished  by  the  rules  of  law.  Tlie  maxim  is  true  in  both 
of  these  senses  when  properly  applied  to  different  cases  and 
different  circumstances  ;  but,  it  is  not  universally  true  in  either 
sense  ;  or,  in  other  words,  it  is  not  a  rule  of  universal  applica- 
tion. If  there  is  a  plain,  direct,  positive  rule  of  common  law,  or 
an  express  statute,  which  governs  the  case  with  all  its  circum- 
stances, or  some  particular  point,  a  court  of  equity  is  as  much 


PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY.   153 

bound  by  it  as  a  court  of  law,  ante^  §  7.  In  the  construction  of 
written  instruments  tiie  same  general  rules  govern  at  law  or  in 
equity,  ante^  116,  art.  8,  §  4.  Courts  of  equity  discountenance 
neglect  or  laches ;  and,  the  statute  of  limitations  will  be  enforced 
by  them  as  readily  as  by  courts  of  law.  Kant  v.  Bloodgood,  7 
Johns.  Ch.  90  ;  S.  C,  ,8  Cow.  360;  Clark  v.  Ford,  1  Abb.  Ct. 
App.  359;  3  Abb.  (N.  S.)  245  ;  34  How.  478;  3  Keyes,  370;  1  Trans. 
App.22  ;  Chapman  v.  Butler,  22  Me.  191;  Phillips  v.  Rogers,12 
Mete.  (Mass.)  405  ;  Wagner  v.  Baird,  7  How.  (U.S.)  234  ;  Max- 
well V.  Kennedy,  8  id.  210  ;  Bowman  v.  Warhen,  1  id.  189. 

And,  in  some  cases,  courts  of  equity  will  refuse  to  interfere  or 
act  after  a  considerable  lapse  of  time, from  considerations  of  pub- 
lic policy,  and  from  the  difficulty  of  doing  entire  justice  between 
the  parties,  even  though  the  claim  may  not  be  barred  by  the 
statute  of  limitations.  lb.  Hunt  v.  Ellison,  32  Ala.  173  ;  ^y^l- 
son  V.  Anthony,  19  Ark.  16  ;  Kerhy  v.  Jacobs,  13  B.  Monr.  435; 
Britton  v.  Lewis,  8  Rich.  Eq.  (S.  C.)  27L 

§  3.  Where  both  parties  are  equally  in  the  wrongs  the  court 
will  not  interfere.  Courts  of  equity  require  honesty,  good 
faith,  and  legality  in  transactions  between  men ;  and,  he  who 
seeks  the  aid  of  a  court  of  equity  should*,  himself,  come  into 
court  with  clean  hands.  In  this  court,  as  in  courts  of  law, 
if  both  parties  are  equally  in  the  wrong,  the  condition  of  the 
defendant  is  the  most  secure.  Where  a  party  seeks  to  be  re- 
lieved from  the  fulfillment  of  a  contract,  intentionally  made  in 
fraud  of  the  law,  and  both  parties  in  pari  delicto,  the  court  will 
not  interfere.  It  will  not  aid  a  judgment  debtor  to  escape  from 
the  payment  of  a  judgment  upon  the  ground  that  the  contract 
on  which  the  action  at  law  was  founded  was  prohibited  by  a 
statute,  and  both  parties  were  in  pari  delicto.  CreatK  s  Admr.  v. 
Sims,  5  How.  (U.  S.)  192,  204  ;  Carey  v.  Smith,  11  Ga.  539 ;  Mc- 
Donald v.  Camphell,  3  Pittsb.  (Pa.)  554. 

It  is  the  policy  of  the  law  to  withhold  all  aid  or  relief  from 
parties  in  controversies  between  themselves,  if  they  are  in  pari 
delicto,  and  when  such  aid  could  or  might  tend  to  the  consum- 
mation of  an  agreement  entered  into  in  fraud  of  the  law,  or  the 
rights  of  other  persons,  unless  such  interference  would  promote 
public  policy.  Freeman  v.  Sedgwick,  6  Gill.  (Md.)  28.  Where 
both  parties  have  been  engaged  in  an  illegal  transaction,  the 
court  will  not  lend  its  active  aid  to  the  one  party  to  get  rid  of 
the  securities  taken  upon  the  illegal  transactions,  nor  will  it  aid 
the  other  party  in  retaining  them ;   but  will  leave  both  to  their 

Vol.  L  — 20 


154  PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY. 

strict  technical  rights.  Harrington  v.  Bigelow,  11  Paige,  349, 
350 ;  Atwood  v.  FlsJc^  101  Mass.  363.  A  court  of  equity  will  not 
entertain  a  suit  which  is  founded  upon  a  contract  or  transaction 
involving  a  violation  of  the  laws  of  another  State  within  its  lim- 
its. Paine  v.  France^  26  Md.  46.  Or  a  bill  which  seeks  to  can- 
cel an  obligation  the  consideration  of  which  is  a  violation  of 
chastity,  compounding  a  felony,  false-swearing,  or  other  breach 
of  good  morals.  Weakly  v.  Watkins,  7  Humph.  356.  .  Or  a  bill 
to  hold  an  agent  responsible  for  the  value  of  a  bond  placed  in 
his  hands  for  collection,  which,  at  that  time,  was  known  by  both 
parties  to  have  been  stolen,  although  the  principal  may  have 
originally  received  it  in  good  faith.  Kirk  v.  Morrow,  6  Heisk. 
(Tenn.)  445.  There  can  be  no  right  in  equity  which  grows  out  of 
a  transaction  that  is  illegal  and  void.  Mattox  v.  Hightstrue,  39 
Ind.  95. 

§  4.  Where  the  equities  are  equal,  the  law  prevails.  It  is  a 
maxim  in  equity,  that  where  the  equities  of  the  parties  are 
equal,  the  law  must  prevail.  Where  the  defendant  has  an  equal 
claim  to  the  protection  of  a  court  of  equity  for  his  title,  as  that 
accorded  by  the  court  to  the  plaintiff  for  the  assertion  of  his  title, 
the  court  will  not  interfere  on  either  side.  If  one  of  two  inno- 
cent parties  must  suffer,  it  must  be  that  one  who  trusted  most, 
or  whose  misplaced  confidence  caused  or  permitted  the  wrong  to 
be  done.  Ruiz  v.  Norton,  4  Cal.  355;  Coles  v.  Anderson,  8 
Humph.  489 ;  Kesler  v.  Zimmerchitte,  1  Tex.  50.  Equity  will 
not  interfere  to  set  up  a  prior  unsealed  mortgage  against  a  judg- 
ment creditor.    Pratt  v.  Clemens,  4  W.  Va.  443. 

Parties  who  are  clothed  with  a  legal  title  to  an  estate  will  be 
regarded  as  its  owners,  until  such  title  is  removed  or  destroyed 
by  a  superior  equity.  Lenox  v.  Notrebe,  1  Hempst.  475  ;  Griffin 
V.  Carter,  5Ired.  Eq.  413;  Hunty.  Turner,  9  Tex.  385. 

A  court  of  equity  will  not  take  money  from  one  party  and  pay 
it  over  to  others  who  have  no  better  or  more  meritorious  claim  to 
it  than  he  has.  Claire  v.  Bailey,  6  Bush  (Ky.),  77,  81.  A  court 
of  equity  will  not  interfere,  either  for  relief  or  for  discovery, 
against  a  bona  fide  purchaser  of  the  legal  estate  for  a  valuable 
consideration,  without  notice  of  the  adverse  title,  if  he  avails 
himself  of  the  defense  at  the  proper  time  and  in  the  proper  man- 
ner. And  it  will  extend  its  protection  equally,  if  the  purchase  is 
originally  of  an  equitable  title  without  notice,  and  afterward 
with  notice,  the  party  obtains  or  buys  in  a  prior  legal  title,  for 
the  purpose  of  supporting  his  equitable  title.    Newton  v.  Mc- 


PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY.   155 

Lean^  41  Barb.  285  ;  Rexford  v.  Mexford,  7  Lans.  6 ;  Seal  v. 
Miller,  1  Hun,  390 ;  S.  C,  3  N.  Y.  S.  C.  (T.  &  C.)  564 ;  Grosvenor 
V.  Allen,  9  Paige,  74 ;  Russell  v.  Petrie,  10  B.  Monr.  184,  186. 
But  a  court  of  equity  is  not  bound  at  all  times  to  enforce  a  strict 
legal  right,  but  will  protect  the  equitable  title  when  good  con- 
science requires  it.  Lewis  v.  Lyons,  18  111.  117.  And  it  will 
not  impart  force  to  a  defective  title,  when,  by  doing  so,  other  per- 
sons having  a  prior  equity  in  the  land  would  be  injuriously 
affected.  Lucas  v.  Barrett,  1  Greene  (Iowa),  510.  If  the  pro- 
tection of  the  court  cannot  be  granted  to  one  having  a  right 
thereto,  without  affecting  innocent  parties,  it  will  be  refused. 
Johnson  V.  Hubbell,  10  N.  J.  Eq.  832. 

§  5.  Prior  in  time,  prior  in  right.  As  between  mere  equitable 
claims,  he  who  is  first  in  time  is  superior  in  right.  Cherry  v. 
Monro,  2  Barb.  Ch.  618;  Yanmeter\.  McFaddin,  8  B.  Monr.  435, 
441.  Where  the  legal  estate  is  outstanding,  equitable  rights  or 
incumbrances  must  be  upheld  or  discharged,  according  to  their 
priority  in  time.  Wails  v.  Cooper,  24  Miss.  208.  If  the  equities 
are  unequal,  the  preference  is  given  to  the  superior  equity. 
Jeremy's  Eq.  Jur.  285,  286.  If  one  who  is  equal  in  equity,  and 
is  also  strongest  in  law,  takes  a  dishonest  step  to  strengthen  his 
title,  he  will  lose  his  advantage.  Ellis  v.  Durham,  2  Jones'  Eq. 
(N.  C.)  465.  In  equity,  as  well  as  at  law,  the  maxim  is,  "  Vigil- 
antibus,  non  dormientihuSy  jura  suhveniunt,^''  the  laws  assist 
those  who  are  vigilant,  not  those  who  sleep  over  their  rights. 
Slemmefs  Appeal,  58  Penn.  St.  168,  177;  and  see  Broom's  Leg. 
Max.  892. 

§  6.  Equality  is  equity.  The  general  maxim  is,  that  equal- 
ity is  equity;  or  as  it  is  sometimes  expressed,  equity  delighteth 
in  equality.  Petit  v.  Smith,  1  P.  Wms.  9.  Equality,  among 
creditors  having  a  common  right  to  payment  out  of  a  fund  pro- 
vided for  the  benefit  of  all,  is  a  settled  principle  of  equity. 
Shepherd  v.  Guernsey,  9  Paige,  357,  361. 

The  cases,  in  which  this  maxim  is  most  frequently  applied  in 
equity,  are,  in  cases  of  contribution  between  co-contractors, 
sureties,  and  others;  to  cases  of  abatement  of  legacies,  where 
there  is  a  deficiency  of  assets;  to  cases  of  apportionment  of  mon- 
eys due  on  incumbrances  among  different  purchasers  and  claim» 
ants  of  different  parcels  of  land;  and  especially  to  the  marshal- 
ling and  distribution  of  equitable  assets.  1  Story's  Eq.  Jur.,  §  64,/. 

§  7.  He  who  seeks  equity  must  do  equity.  The  following  prin- 
ciples of  equity  jurisprudence  are  said  to  be  without  exception; 


156  PRINCIPLES  RELATING  TO  SUITS  IN  EQUITY. 

that  whosoever  would  seek  admission  into  a  court  of  equity  must 
come  with  clean  hands;  that  such  a  court  will  never  interfere  in 
opposition  to  conscience  or  good  faith ;  and,  that  it  will  never  be 
called  into  activity  to  remedy  the  consequence  of  laches  or  neg- 
lect, or  the  want  of  reasonable  diligence.  Daniel,  J.,  in  Creatli^s 
Admr.  v.  Sims,  5  How.  (U.  S.)  204 ;  Thomas  v.  Bartow^  48  N. 
Y.  (3  Sick.)  193.  If  a  borrower  of  money  at  a  usurious  rate  of 
interest  seeks  the  aid  of  a  court  of  equity  for  the  purpose  of 
canceling  the  instrument,  or  for  having  it  delivered  up,  the  court 
will  not  interfere  in  his  favor  except  upon  the  terms  that  he  pay 
to  the  lender  such  amount  as  is  really,  and  in  good  faith  due  to 
him.  Sporrer  v.  Eljler,  1  Heisk.  (Tenn.)  633;  Limngston  v. 
Harris,  3  Paige,  528,  537;  Fanning  v.  Dunham,  5  Johns.  Ch. 
122.  In  an  action  by  the  grantee  to  reform  a  deed  of  trust  given 
to  secure  the  payment  of  a  note,  where  the  defense  of  usury  is 
set  up  and  proved,  the  plaintiff  must  produce  his  note  and  have 
it  reformed  so  as  to  rebate  the  usurious  part  of  it,  or  no  relief 
will  be  granted  to  him.  Corhy  v.  Bean,  44  Mo.  379,  382.  See  1 
Story's  Eq.  Jur.,  §  64,  e. 

The  rule,  that  he  who  seeks  equity  must  do  equity,  does  not 
apply  unless  the  mutual  equities  arise  out  of  the  subject-matter 
of  the  suit,  and  are  capable  of  enforcement.  Finch  v.  Finch, 
16  Ohio  St.  501.  But,  the  rule  will  be  applied  where  an  adverse 
equity  grows  out  of  the  controversy  before  the  court,  or  out  of 
circumstances  which  the  record  shows  to  be  a  part  of  its  history, 
or  where  it  is  so  connected  with  the  cause  as  to  be  presented  in 
the  pleadings  and  proofs,  with  full  opportunity  afforded  to  the 
party  thus  recriminated,  to  explain  or  refute  the  charges.  Corn- 
stock  V.  Johnson,  46  N.  Y.  (1  Sick.)  615. 

§  8.  Equity  regards  as  done,  what  ought  to  have  been  done.  The 
rule  that  equity  looks  upon  that  as  done,  which  ought  to  have  been 
done,  means  that  equity  will  treat  the  subject-matter,  as  to  colla- 
teral consequences,  and  incidents,  in  the  same  manner  as  though 
the  final  acts  contemplated  by  the  parties  had  been  executed  pre- 
cisely as  they  ought  to  have  been;  not  as  the  parties  might  have 
executed  them.  Aiwood  v.  Vi7icent,  17  Conn.  575 ;  Uashrook  v. 
Paddock,  1  Barb.  635;  Burch  v.  Newberry,  id.  648;  10  N.  Y.  (6 
Seld.)  374.  Though  the  rule  that  what  ought  to  have  been  done 
will  be  considered  as  done  between  certain  parties,  the  rule  will 
not  be  extended  so  as  to  affect  the  rights  of  third  parties,  as  be- 
tween themselves,  when  they  had  contracted  in  reference  to  what 
ha9.  been  actually  done;  and  especially  where  the  one  claiming 


PRINCIPLES  OF  DEFENSES  AT  LAW,  ETC.       157 

the  benefit  of  it  was  a  party  to  tliat  contract,  assented  to  its  terms 
and  received  its  benefits.  Vose  v.  Cowdrey,  49  N.  Y.  (4  Sick.) 
336. 

Where  real  estate  is  ordered  to  be  sold,  it  becomes  personalty, 
and  will  go  accordingly.  Fletcher  v.  AsJiburner,  1  Bro.  C.  C. 
497;  1  Lead.  Cas.  Eq.  534,  and  notes. 

§  9.  Union  of  law  and  equity.  In  many  of  the  States  codes 
have  been  adopted  which  abrogate  the  distinction  between  law 
and  equity.     See  ante,  29. 

The  abrogation  of  the  forms  of  procedure  does  not  destroy  the 
distinction  between  legal  and  equitable  rights.  Matthews  v.  Mc- 
Pherson,  65  N.  C.  189;  Troost  v.  Davis,  31  Ind.  34 ;  ante,  30. 


TITLE  IV. 

OF  SOME  OF  THE  GENERAL  PEINCIPLES  EELATING  TO 
THE  DEFENSE  OF  ACTIONS  AT  LAW,  OR  OF  SUITS  IN 
EQUITY. 

ARTICLE  I. 

RULES  AND   ILLUSTRATIONS. 

Section  1.  Of  defenses  in  generaL  When  an  action  or  suit  has 
been  brought  against  a  party,  he  must  elect  whether  he  will 
allow  a  judgment  or  decree  to  be  taken  against  him  by  default, 
or  whether  he  will  make  a  defense.  In  considering  this  matter 
the  first  question  will  be,  is  there  any  available  defense  that  can 
be  interposed.  In  some  cases  there  will  be  a  good  defense  upon 
the  merits.  In  other  cases  there  may  not  be  any  defense  upon 
the  merits,  and  yet  be  a  sufficient  ground  for  defeating  the  action 
because  it  is  brought  before  the  proper  time,  or  is  not  brought 
and  prosecuted  in  the  proper  mode. 

As  a  general  rule,  the  matter  constituting  a  defense  must  ex- 
ist and  be  available  at  the  time  the  action  is  brought.  Rundle 
V.  Little,  6  Q.  B.  174 ;  Lee  v.  Lei^y,  4  B.  &  C.  399 ;  6  D.  &  R.  475; 
Bartlett  v.  Holmes,  13  C.  B.  630.  As  to  novelty  as  an  objection 
to  an  action  or  defense,  see  ante,  140,  art.  1,  §  2. 

No  person  is  allowed  to  defend  an  action  upon  a  question 
which  does  not  concern  him,  and  in  which  he  has  no  lawful  inter- 
est. Flint  V.  Craig,  59  Barb.  319,  331,  332  ;  Campbell  v.  Erie 
Railway  Co.,  46  id.  540 ;  City  Bank  of  New  Haven  v.  Perlcins, 


158      PEINCIPLES  OF  DEFENSES  AT  LAW,  ETC. 

29  N.  Y.  (2  Tiff.)  554.  As  an  illustration  of  this  rule,  infancy  is 
a  personal  defense,  which  no  person  can  interpose  except  the 
infant  himself.  Jones  v.  Butler,  30  Barb.  641 ;  20  How.  189  ; 
Hartness  v.  Thompson,,  5  Johns.  160  ;  Slocum  v.  Hooker,  13  Barb. 
536.  So  the  defense  of  usury  can  be  set  up  only  by  the  princi- 
pal debtor,  or  by  his  sureties,  heirs,  devisees,  or  personal  represen- 
tatives. Billington  v.  Wagoiier,  33  N.  Y.  (6  Tiff.)  31 ;  OMo  & 
Miss.  jR.  R.  Co.  V.  Kasson,  37  N.  Y.  (10  Tiff.)  218  ;  4  Trans.  App. 
184 ;  Lehman  v.  Marshall,  4n  Ala.  362 ;  Hough  v.  Horsey,  36 
Md.  181;  S.  C,  11  Am.  Rep.  484;  Carmichael  v.  Bodfish,  32 
Iowa,  418. 

A  defense  consisting  of  matter  of  fact  is  set  up  in  the  plea  or 
answer.  If  the  defense  consists  of  matter  of  law  it  is  interposed 
by  demurrer  to  the  declaration  or  complaint.  Pleas  or  answers 
are  generally  divided  into  two  kinds ;  one  is  those  of  a  dilatory 
nature,  which  delay  the  plaintiff's  remedy,  not  by  questioning 
his  right  of  action,  but  merely  the  propriety  of  the  action,  or  the 
mode  in  which  it  is  brought ;  the  other  is  peremptory,  or  those 
which  deny  the  plaintiff's  right  of  action.  The  former  of  these 
pleas  or  answers  are  in  abatement,  the  latter  in  bar,  of  the 
action. 

Before  interposing  any  defense  it  is  sometimes  proper,  and 
sometimes  necessary  to  obtain  leave  of  the  court  for  that  pur- 
pose.   See  ^'  Leave  to  Defend." 

There  are  persons  who  are  privileged  from  civil  suits  or  actions, 
such  as  ambassadors,  members  of  congress,  of  assembly,  and 
some  others. 

§  2.  Of  pleas  or  answers  in  abatement.  Pleas  or  answers  in 
abatement,  when  sufficient,  show  some  ground  why  the  action 
should  not  be  sustained.  The  usual  grounds  are  such  as  relate 
to  the  disability  of  the  plaintiff,  to  the  disability  of  the  defend- 
ant, to  the  count  or  declaration,  or  to  the  writ.  This  subject  will 
be  fully  explained  under  the  title  Abatement. 

§  3.  Pleas  or  answers  in  bar.  Such  pleas  are  founded  upon 
the  principle  or  fact  that  the  plaintiff  has  no  cause  of  action. 
The  matters  which  may  be  successfully  interposed  as  a  defense 
are  very  numerous  ;  and  they  will  be  found  in  this  work  under 
the  title  "  Defenses,"  where  most  of  them  will  be  carefully  and 
fully  explained. 

§  4.  Demurrer.  One  very  common  mode  of  defense  is  by 
demurrer  to  the  declaration  or  complaint,  when  no  cause  of 
action  is  set  forth  therein,  or  when  it  is  not  sufficiently  stated. 


PRINCIPLES  OF  DEFENSES  AT  LAW,  ETC.       159 

The  grounds  of  demurrer  will  be  set  forth  under  the  title  De- 
murrer. Such  a  defense  admits  the  truth  of  the  facts  alleged,  if 
they  are  properly  pleaded,  and  the  only  question  then  is,  as  to 
their  legal  sufficiency. 

§  5.  Deny  the  facts.  Under  the  common-law  system  the  plea 
of  the  general  issue  put  the  plaintiff  upon  proof  of  the  material 
facts  alleged  in  his  declaration;  and  besides  that,  there  were 
many  defenses  which  might  be  proved  under  this  plea.  At  the 
present  day  there  are  many  cases  in  which  a  mere  general  denial 
operates  simply  to  put  the  plaintiff  upon  proof  of  his  case ; 
but  do  not  allow  the  proof  of  any  defense  not  affirmatively  set 
up  by  the  defendant  in  his  pleading.     See  "  General  Denial." 

§  6.  Admit  the  facts  alleged,  but  set  up  matter  in  ayoidance. 
When  the  defendant  cannot  truly  or  successfully  interpose  a 
denial  of  the  facts  alleged  in  the  plaintiff 's  declaration  or  com- 
plaint, he  may  either  expressly  admit  their  truth,  or  may  im- 
pliedly admit  them  by  not  denying  their  truth.  In  such  cases, 
if  the  defendant  has  any  valid  defense  upon  the  facts  it  must  be 
set  up  by  way  of  matter  in  avoidance  of  the  plaintiff's  action. 

Such  matters  are  very  numerous,  and  will  be  found  under  the 
proper  heads  in  the  part  of  this  work  entitled  "Defenses." 

§  7.  Counterclaim.  The  whole  subject  of  counterclaim  as  a 
defense  will  be  discussed  elsewhere.     See  "Counterclaim." 

§  8.  Set-off.    See  that  title  for  the  law  upon  the  subject. 


160  ACCIDENTS. 


CHAPTER  III. 


OF  ACTIONS   FOUNDED   UPON,  OR  RELATING  TO 
ACCIDENTS. 


ARTICLE  I. 

ACTIONS  AT   LAW. 

Section  1.  When  an  action  lies.  An  action  at  law  does  not  lie 
against  a  person  for  causing  an  injury  to  another,  by  an  accident 
wholly  unavoidable ;  but,  if  any  blame  be  imputable  to  the 
defendant,  although  he  be  innocent  of  any  intention  to  injure, 
as  where  he  drives  a  spirited  horse  improperly,  or  uses  imper- 
fect harness,  and  the  horse  takes  fright  and  kills  another,  an 
action  lies.  Wakeman  v.  RoMnson,  8  Moore,  63  ;  S.  C,  1  Bing. 
213.  It  is  sufficient  if  the  injury  be  the  direct  and  immediate 
consequence  of  a  force  exerted  by  the  defendant  without  the 
exercise  of  due  care,  unless  the  force  was  used  strictly  in  self- 
defense.  Thus,  where  in  shooting  at  butts  upon  a  trial  of  skill 
with  a  bow  and  arrow,  the  archer's  arrow  glanced  and  struck 
another,  he  was  held  responsible  in  damages,  although  he  was 
doing  an  act  lawful  in  itself,  and  had  no  unlawful  purpose  in 
view.  Year  Book,  21  H.  7,  28  a.  See  Bullock  v.  BabcocTc,  3 
Wend.  391.  And  the  same  rule  was  applied  where  an  uninten- 
tional injury  was  caused  by  the  glancing  of  a  pistol  ball,  shot 
at  a  mark.  Welch  v.  Durand,  36  Conn.  182;  S.  C,  4  Am.  R. 
55.  So,  where  a  number  of  persons  were  lawfully  exercising 
themselves  at  arms,  one  whose  gun  accidentally  went  off,  was 
held  liable  for  the  injury  occasioned  by  the  accident.  Weaver 
V.  Ward,  Hobart,  134.  But,  as  in  all  these  and  similar  cases  a 
recovery  is  properly  put  on  the  ground  of  negligence,  a  full  dis- 
cussion of  them  will  more  appropriately  fall  under  the  head  of 
Negligence. 

§  2.  When  no  action  lies.  Where  a  person,  in  the  performance 
of  a  lawful  act,  causes  an  injury  to  the  person  or  property  of 
another,  he  is  not  liable,  in  the  absence  of  all  negligence.  The 
general  rule  is  stated  to  be,  that  the  plaintiff  must  come  prepared 
with  evidence  to  show  that  the  intention  was  unlawful,  or  that 
the  defendant  was  in/awZ^  /  for,  if  the  injury  was  unavoidable 


ACCIDENTS.  161 

and  the  conduct  of  the  defendant  was  free  from  blame,  he  will  not 
be  held  liable.  Broion  v.  Kendall,  6  Cush.  292  ;  Wakeman  v. 
Robinson,  1  Bing.  213.  If,  in  the  prosecution  of  a  lawful  act,  a 
casualty  purely  accidental  arises,  no  action  can  be  supported  for 
an  injury  arising  therefrom.  Id.;  Davis  v.  Saunders,2  Chitt.  639  ; 
Vincent  v.  StineJiour,  7  Vt.  69  ;  Strouse  v.  Wliittlesey,  41  Conn.; 
S.  C,  12  Alb.  L.  J.  360.  Thus,  if  A  sets  fire  to  his  own  fallows- 
ground,  as  he  may  lawfully  do,  which  communicates  to  and  tires 
the  woodland  of  B,  his  neighbor,  no  action  lies  against  A,  unless 
there  was  some  negligence  or  misconduct  in  him  or  his  servant. 
GlarTc  v.  Foot,  8  Johns.  422  ;  Simons  v.  Monier,  29  Barb.  419  ; 
Stuart  V.  Hawley,  22  id.  619.  So,  where  a  person  is  using  fire 
for  any  lawful  purpose,  and  is  guilty  of  no  negligence,  he  is  not 
responsible  for  accidents  occurring  without  fault  on  his  part. 
Bizzell  V.  BooJcer,  1 6  Ark.  308  ;  Lansing  v.  Stone,  37  Barb.  15  ; 
Hinds  V.  Barton,  25  N.  Y.  (11  Smith)  544;  CooJc  v.  77ie  Ohamplain 
Transportation  Co.,  1  Denio,  91.  And  if  any  one  driving  along 
a  highway  with  due  care,  accidentally  injures  another  person 
or  his  property,  he  is  not  liable  in  the  absence  of  negligence. 
Hammock  v.  ^YMte,  11  C.  B.  (N.  S.)  587 ;  Center  v.  Finney,  17 
Barb.  94  ;  Brown  v.  Collins,  53  N.  H.  442 ;  S.  C,  16  Am.  Eep. 
372  ;  Holmes  v.  Mather,  L.  R.,  10  Exch.  261 ;  S.  C,  16  Am.  Rep. 
384,  n.  So,  the  owner  of  property,  which,  without  his  consent,  is 
carried  by  flood  or  storm  down  a  stream,  and  deposited  upon 
the  lands  of  another,  is  not  liable  for  any  damage  occasioned, 
unless  he  reclaims  the  property.  Sheldon  v.  Sherman,  42  N.  Y. 
(3  Hand)  484  ;  S.  C,  1  Am.  Rep.  569  ;  Livezey  v.  Philadelphia, 
64  Penn.  St.  106  ;  S.  C,  3  Am.  Rep.  578.  Nor  is  the  owner  of  a 
steam  boiler,  which  is  operated  upon  his  own  premises  in  a 
lawful  manner,  liable,  without  proof  of  negligence,  to  an  adjoin- 
ing owner,  for  damage  done  to  his  property  by  reason  of  an  acci- 
dental explosion  of  such  boiler.  Losee  v.  Buchanan,  51  N.  Y. 
(6  Sick.)  476  ;  S.  C,  10  Am.  Rep.  476.  And  where  one  builds  a 
mill-dam  upon  a  proper  model,  and  the  work  is  well  and  sub- 
stantially done,  he  is  not  liable  to  an  action,  though  it  break 
away,  in  consequence  of  which  his  neighbor's  dam  and  miU 
below  are  destroyed.  Negligence  should  be  shown  in  order  to 
make  him  liable.  lb.  Limngston  v.  Adams,  8  Cow.  175 ;  Sheldon 
V.  Sherman,  42  N.  Y.  (3  Hand)  484  ;  S.  C,  1  Am.  Rep.  579  ;  see 
Wilson  V.  City  of  New  Bedford,  108  Mass.  261 ;  S.  C,  11  Am. 
Rep.  352  ;  Cahill  v.  Eastman,  18  Minn.  324;  S.  C,  10  Am.  Rep. 
184  ;  Rylands  v.  Fletcher,  Law  Rep.,  3  H.  L.  330  ;  11  Alb.  Law 

Vol.  L  — 21 


162  ACCIDENTS. 

Jonr.  233.  In  these,  and  in  many  like  cases,  the  injury  arises 
from  a  fortuitous  occurrence  beyond  the  control  of  man,  termed 
"  the  act  of  God  ;"  and  the  party  suffering  must  submit  to  it,  as 
a  providential  dispensation.  Aniliony  v.  Haney,  8  Bing.  191  ; 
Rijan  V.  N'.  T.  Cent.  B.  R.  Co.,  35  N.  Y.  (8  Tiff.)  210  ;  Oault  v. 
Humes,  20  Md.  297  ;  Vincent  v.  Stineliour,  7  Vt.  62.  There  is 
no  liability  on  the  part  of  him  through  whose  innocent  instru- 
mentality the  injury  occurs,  and  his  promise  to  respond  in  dam- 
ages would  be  without  consideration  and  void.  Sheldon  v.  Sher- 
man, 42  N.  Y.  (3  Hand)  484;  S.  C,  1  Am.  Rep.  569.  See  this 
subject  more  fully  discussed  under  "Act  of  God,"  as  a  defense 
to  actions. 

ARTICLE  II. 

ACTIO]SrS   IN   EQUITY,    AND  WHEN   AN  ACTION   LIES. 

Section  1.  In  general.  In  many  cases  of  accident,  relief  may 
be  obtained  in  an  equitable  action,  and  the  term  accident,  in  the 
view  of  a  court  of  equity,  means  not  merely  inevitable 
casualty,  or  the  act  of  providence,  or  what  is  technically 
called  vis  major,  or  irresistible  force ;  but  such  unforeseen  events, 
misfortunes,  losses,  acts,  or  omissions,  as  are  not  the  result  of 
any  negligence  or  misconduct  in  the  party.  1  Story's  Eq.  Juris., 
§  78 ;  Brown  v.  Elliott,  14  N".  J.  L.  353  ;  Chase  v.  Barrett,  4 
Paige,  148  ;  Jones  v.  Woodhull,  1  Root  (Conn.),  298.  The  juris- 
diction of  the  court,  arising  from  accident  in  this  sense,  is  of 
very  ancient  origin,  and  probably  coeval  with  the  existence  of 
equity  itself  as  a  distinct  branch  of  jurisprudence.  See  Armitage 
V.  WadsiDorth,  1  Madd.  189,  193  ;  East  India  Company  y.  Bod- 
dam,  9  Ves.  466.  So,  accident  was  a  circumstance  on  which 
relief  might  be  obtained  under  the  Roman  system  of  jurispru- 
dence, on  the  ground  of  natural  justice.  Dig.  XXVII,  1, 1, 13,  7;  1 
Spence'sEq.  Juris.  628. 

It  is  not,  however,  every  case  of  accident  which  will  justify  the 
interposition  of  a  court  of  equity.  Whitfield  v.  Faussat,  1  Ves. 
392,  393.  The  jurisdiction  being  concurrent,  will  be  maintained 
in  those  cases  only  in  which  there  is  not  a  plain,  adequate  and 
complete  remedy  at  law,  and  the  party  has  a  conscientious  title 
to  relief.  Both  these  grounds  must  concur  in  the  given  case  ; 
otherwise,  a  court  of  equity  is  bound  to  withhold  its  aid.  See  1 
Story's  Eq.  Juris.,  §  79  ;  Grant  v.  QuicJc,  5  Sandf.  (N.  Y.)  612  ; 
Tucker  v.  Madden,  44  Me.  206;  Keen  v.  J  or  don,  13  Fla.  327.  And 


ACCIDENTS.  163 

since  courts  of  law,  in  modern  times,  frequently  interfere  to 
grant  a  remedy  under  circumstances  in  which  it  would  have  been 
formerly  denied,  and  as,  by  express  legislative  enactments,  such 
courts  have,  in  some  cases,  had  conferred  upon  them  the  same 
remedial  faculty  which  belongs  to  courts  of  equity,  it  has  re- 
sulted that  accident  now  rarely  forms  a  satisfactory  reason  for 
equitable  interference.  Seel  Story's  Eq.  Juris.,  §  80;  3  Broom  & 
Had.  Cora.  61  (Wait's  ed.,  vol.  2,  64.)  In  most  cases,  where  the 
jurisdiction  is  still  allowed  to  exist,  it  is  merely  because,  hav- 
ing been  once  acquired,  it  cannot  be  afterward  lost  or  aban- 
doned. Id.;  and  see  Hall  v.  Hall,  43  Ala.  488;  King  v.  Baldwin, 
17  Johns.  384;  East  India  Company  v.  Boddam,  9  Ves.  466; 
Mayne  v.  Griswold,  3  Sandf.  (N.  Y.)  463.  Where  courts  of 
equity  originally  obtained  and  exercised  jurisdiction,  that  ju- 
risdiction is  not  overturned  or  impaired  by  the  fact  that  courts  of 
law  have  subsequently  granted  a  remedy  in  similar  cases.  Case  v. 
FisTiback,  10  B.  Monr.  (Ky.)  40;  Shields  v.  Cone,  4  Rand.  (Va.)  541. 
§  2.  Lost  instruments  under  seal.  The  jurisdiction  in  equity, 
in  the  case  of  lost  bonds,  or  other  instruments  under  seal,  is 
founded  upon  a  doctrine  of  the  ancient  common  law,  that  no 
I'emedy  existed  in  a  court  of  law  in  such  case,  because  there 
could  be  no  profert  of  the  instrument,  without  which  the  decla- 
ration would  be  fatally  defective.  East  India  Company  v. 
Boddam,  9  Ves.  464;  Bromley  v.  Holland,  7  id.  19;  Toulmin 
V.  Price,  5  id.  238,  and  notes;  Afkinson  v.  Leonard,  3  Bro.  Ch. 
218.  In  modern  times,  profert  may,  however,  be  dispensed  with, 
if  an  allegation  of  loss,  by  time  and  accident,  is  stated  in  the 
declaration,  and  thus,  courts  of  law  may  now  entertain  juris- 
diction. But  it  does  not  follow,  because  a  court  of  law  will  give 
relief,  that  a  court  of  equity  loses  the  concurrent  jurisdiction 
which  it  has  always  had.  Mayne  v.  Oriswold,  3  Sandf.  (IST.  Y.) 
478;  1  Story's  Eq.  Juris.,  §  80;  Shields  v.  Com.,  4  Rand.  (Ya.) 
641.  The  latter  court  still  retains  its  jurisdiction,  and  in  the 
case  of  lost  or  destroyed  bonds,  etc.,  affords  relief  more  com- 
plete, adequate,  and  perfect,  than  can  be  done  by  courts  of  law. 
Allen  V.  State  Bank,  1  Dev.  &  B.  Eq.  (N.  C.)  1 ;  Irwin  v.  Plan- 
ters' Bank,  1  Humph.  145;  Deans  v.  Dortch,  5  Ired.  Eq.  (N.  C.) 
331 ;  Carter  v.  Jones,  5  id.  196.  Thus  a  court  of  law,  in  the 
absence  of  a  statutory  authorit}^,  is  generally  incompetent  to 
require  as  terms  of  granting  relief,  that  the  party  shall  give, 
when  proper,  a  suitable  bond  of  indemnity;  but  this,  a  court  of 
equit}^  may  do,  and  will  also  require  the  party  to  make  an  affi- 


164  ACCIDENTS. 

davit  of  the  loss  of  the  instrument.  Leroy  v.  Yeeder^  1  Johns. 
Cas.  417;  Walmsley  v.  CJiild,  1  Ves.  344.  See  Owen  v.  Paul, 
16  Ala.  130;  Hill  v.  Lackey,  4  Dana,  81;  Chewing  v.  Singleton, 
2  Hill's  Eq.  (S,  C.)  371  ;  Bennington  v.  The  Governor,  1  Blackf. 
(Ind.)  78;  Davis  v.  Pettit,  11  Ark.  349.  As  to  analogous  relief 
in  a  court  of  law,  by  requiring  the  previous  offer  of  a  bond  of 
indemnity,  see  Fates  v.  Russell,  16  Pick.  315 ;  Hansard  v. 
Bohinson,  7  B.  &  C.  90;  Tuttle  v.  Standish,  4  Allen,  481;  Smith 
V.  Rockwell,  2  Hill  (N.  Y.),  482.  A  court  of  equity  will  not 
grant  relief  to  an  obligee  in  the  case  of  a  lost  bond,  where  it  has 
been  destroyed  or  suppressed  by  the  obligee  himself.  Davis  v. 
Davis,  6  Ired.  Eq.  (N.  C.)  418.  And  see  Blade  v.  JSoland,  12 
Wend.  173. 

The  loss  of  a  deed  is  not  always  a  ground  to  come  into  a  court 
of  equity  for  relief;  for,  if  there  is  no  more  in  the  case,  although 
the  party  may  be  entitled  to  a  discovery  oi  the  original  existence 
and  validity  of  the  deed,  courts  of  law  may  afford  just  relief, 
since  they  will  admit  evidence  of  the  loss  and  of  the  contents  of 
a  deed,  just  as  a  court  of  equity  will  do.  Wliitjield  v.  Faus- 
sat,  1  Ves.  392,  393.  See  Donaldson  v.  Williams,  50  Mo.  407; 
Thomas  v.  Coldwell,  60  111.  138.  Therefore,  to  enable  a  party  to 
come  into  equity  for  relief,  in  case  of  a  lost  deed,  it  is  incumbent 
upon  him  to  establish,  that  either  there  is  no  remedy  at  all  at  law, 
or  no  remedy  which  is  adequate,  and  adapted  to  the  circum- 
stances of  the  case.  See  1  Story's  Eq.  Juris.,  §  84;  Worthy  v. 
Tate,  44  Ga.  152;  Dormer  v.  Fortescue,  3  Atk.  132;  Dalton  v. 
Coatsworth,  1  P.  Wms.  731.  Where  relief  is  sought  in  the  case 
of  a  lost  deed  concerning  the  title  to  lands,  an  affidavit  of  the 
loss  must  be  annexed  to  the  bill.  Carlisle  v.  Ramsey,  4  Ind.  242. 

On  proof  of  the  loss  of  a  mortgage  deed  of  land  to  secure 
personal  support,  a  court  of  equity  will  decree  a  new  mortgage 
to  be  made.  Lawrence  v.  Lawrence,  42  N.  H,  109;  but  see 
Hoddy  v.  Hoard,  2  Cart.  (Ind.)  474;  and  it  has  been  held,  that 
where  a  deed  containing  an  error  reformable  in  equity  is  lost, 
the  execution  of  a  new  and  correct  deed  may  be  decreed.  Huds- 
peth V.  Thomaston,  46  Ala.  470.  So,  where  an  unrecorded  deed 
has  been  lost,  and  the  evidence  introduced  shows  transactions 
between  the  parties  to  the  deed  tending  strongly  to  establish  a 
conveyance,  and  such  evidence  is  uncontradicted,  and  its  force  is 
not  rebutted  or  destroyed,  a  court  of  equity  will  presume  that  a 
deed  was  executed  and  delivered,  and  will  protect  the  rights  of 
the  grantee.    Schaumburg  v.  Hepburn,  39  Mo.  125. 


ACCIDENTS.  165 

§  3.  Lost  notes,  negotiable.  A  general  principle  applicable  to 
negotiable  instruments  is,  that  the  party  to  such  an  instrument, 
when  he  is  called  upon  to  pay  it,  has  the  right  to  insist  that  it 
shall  be  produced  and  delivered  up  to  him.  As  the  owner,  how- 
ever, in  case  of  loss  of  the  instrument,  cannot  do  this,  the  courts 
allow  a  recovery  upon  the  terms  of  his  giving  proper  indemnity. 
But  a  court  of  common  law  cannot  require  such  indemnity  as  a 
part  of  its  judgment.  It  can  neither  impose  terms  upon  the 
plaintiff  as  a  condition  of  such  judgment,  nor  prevent  the  issu- 
ing of  an  execution  thereon.  Pier  son  v.  Hutchison,  2  Camp. 
211 ;  Aranguren  v.  SoJiolJield,  1  Exch.  494;  38  Eng.  Law  &  Eq. 
424  ;  Greenwap,  ex  parte,  6  Ves.  862.  The  only  remedy  in  such 
cases  is  in  a  court  of  equity,  where  all  the  circumstances  of  the 
loss  can  be  fully  investigated,  and  a  suitable  and  proper  indem- 
nity provided.  Dames  v.  Dodd,  4  Price,  176 ;  S.  C,  1  Wils. 
Exch.  110 ;  WalmsleyY.  Child,  1  Yes.  344  ;  3fossop  v.  Eadon,  16 
id.  430 ;  Hansard  v.  RoMnson,  7  B.  &  C.  90 ;  Clay  v.  Crowe,  8 
Exch.  294  ;  Crowe  v.  Clay,  9  id.  604.  Such  is  the  firmly  estab- 
lished doctrine  in  England,  and  in  this  country  the  weight  of 
authority  is  in  harmony  with  the  English  rule.  See  Savannah 
National  Bank  v.  Raskins,  101  Mass.  370  ;  S.  C,  3  Am.  Rep  373  ; 
Moses  V.  Trice,  21  Graft.  (Va.)  556  ;  S.  C,  8  Am.  Rep.  609  ; 
Wright  v.  Wright,  54  N.  Y.  (9  Sick.)  437  ;  Tuttle  v.  Standish,  4 
Allen,  482.  In  all  cases  where,  by  the  accidental  loss  of  the  note 
or  bill,  the  plaintiff  cannot  comply  with  the  defendant's  right 
under  his  contract  to  have  the  identical  instrument  surrendered, 
and  it  is  within  the  power  of  the  court  to  secure  the  defendant 
from  all  appreciable  injury,  relief  will  be  decreed  to  the  plain- 
tiff in  equity,  upon  terms  and  conditions  which  will  secure  and 
protect  the  rights  of  all.  And  it  is  held  to  make  no  difference 
in  principle  whether  the  defendant's  contract  is  an  acceptance  or 
only  a  promise  to  accept.  Savannah  National  Bank  v.  Hask- 
ins,  101  Mass.  370  ;  S.  C,  3  Am.  Rep.  373. 

In  some  of  the  States  statutory  remedies  have  been  provided, 
by  which  most  of  the  difficulties  standing  in  tlie  way  of  actions 
at  law  have  been  removed.  See  as  to  New  York,  2  R.  S.  406,  §§ 
75,  76  ;  Wright  v.  Wright,  54  N.  Y.  (9  Sick.)  437  ;  Alabama,  Posey 
v.  Decatur  Bank,  12  Ala.  802  ;  Braiich  Bank  at  Mobile  v.  Till- 
man, 12  id.  214  ;  Louisiana,  Nagel  v.  Mignot,  7  Mart.  657  ;  8  id. 
488  ;  Iowa,  Temple  v.  Gove,  8  Iowa,  511 ;  Michigan,  Higgins  v. 
Watson,  1  Mich.  -^28 ;  Georgia,  Banks  v.  Dixon,  24  Ga.  483  ; 
Tennessee,  Union  Bank  v.  Osborne,  6  Humph.  318.    But,  inde- 


166  ACCIDENTS. 

pendently  of  the  statute,  an  action  at  law  is  permitted  in  Tennes- 
see on  any  lost  note  or  bill.  Union  Bank  v.  Warren^  4  Sneed, 
167.  As  to  Mississippi,  see  OlarTc  v.  Reed^  12  Smedes  &  M.  554  ; 
Kentucky,  Sebree  v.  Dorr,  9  Wheat,  558 ;  Scott  v.  Cleveland,  3 
T.  B.  Monr.  62;  Commercial  Bank  v.  Benedict,  18  id.  307; 
Virginia,  Shields  v.  Commonwealth,  4  Rand.  541 ;  Farmers'* 
Bank  of  Virginia  v.  Reynolds,  id.  186.  It  may  be  remarked 
generally  of  these  statutory  provisions,  that  they  secure  the 
action  at  law  upon  lost  negotiable  paper,  upon  tendering  a  bond 
of  indemnity,  and  after  parol  proof  of  the  contents.  In  other 
States  having  common-law  and  equitable  powers  blended  in  the 
same  courts,  it  is  the  constant  practice  of  those  courts  to  assume 
jurisdiction  in  this  class  of  cases.  Thus,  in  Pennsylvania,  it  is 
held  that  the  failure  to  indemnify  is  not  a  defense  in  bar  of  the 
action,  but  is  merely  a  prerequisite  to  the  issuing  of  an  execu- 
tion to  enforce  the  judgment,  and  the  right  to  restrain  such  exe- 
cution is  an  equitable  power  vested  in  the  courts,  to  be  adminis- 
tered with  the  machinery  of  common-law  forms.  Bishing  v. 
Graham,  14  Penn.  St.  14.  And  see  Fales  v.  Russell,  16  Pick. 
(Mass.)  315 ;  Bean  v.  Keen,  1  Blackf.  (Ind.)  152 ;  Doornady  v. 
State  Bank  of  Illinois,  2  Scam.  236  ;  Welton  v.  Adams,  4  Cal. 
37 ;  Bell  v.  Moore,  9  Ala.  823  ;  Bullet  v.  Bank  of  Pennsylvania, 
2  Wash.  C,  C.  172.  These  principles  have,  however,  no  applica- 
tion in  those  States  wliere  the  common-law  and  the  equity  tri- 
bunals are  separate  and  distinct.  In  such  case  the  courts  of 
common  law  steadily  refuse  to  take  jurisdiction  of  suits  upon 
lost  negotiable  instruments.  See  Thayer  v.  King,  15  Ohio,  242  ; 
Rowley  v.  Ball,  3  Cow.  303;  Kirhy  v.  Sisson,  2  Wend.  550; 
Wardlaw  v.  Gray,  Dudley's  Eq.  (S.  C.)  85  ;  Moses  v.  Trice,  21 
Gratt.  (Va.)  556  ;  S.  C,  8  Am.  Rep.  609.  There  is,  however,  no 
absolute  necessity  of  resorting  to  a  court  of  equity,  as  the  law 
now  stands,  except  in  the  case  of  negotiable  instruments,  nego- 
tiated while  current,  courts  of  law  now  allowing  a  recovery  at 
law,  upon  Most  instruments  in  all  other  cases.  See  Moore  v. 
Fall,  42  Me.  450  ;  Torrey  v.  Foss,  40  id.  74  ;  Hough  v.  Barton, 
20  Vt.  455  ;  Hojpkins  v.  Adams,  id.  407 ;  Wright  v.  Wright, 
54  N.  Y.  (6  Sick.)  437  ;  1  Story's  Eq.  Juris.,  §  86  a.  In  cases  of 
this  kind,  a  bond  of  indemnity  is  never  necessary,  except  in  those 
cases  in  which  the  note  alleged  to  be  lost  is  negotiable :  and  the 
negotiability  will  not  be  presumed,  but  must  be  proved.  Blade 
V.  Noland,  12  Wend.  173  ;  Wright  v.  Wright,  54  N.  Y.  (9  Sick.) 
437.    The  American  rule  upon  indemnity  is  briefly  stated  to  be 


ACCIDENTS.  167 

"tliat  if  it  can  be  shown  in  any  way  that  the  defendant  may  be 
wrongfully  injured  by  paying,  he  may  require  security,  but  only 
then."     2  Pars,  on  Bills  &  Notes,  304. 

To  sustain  an  equitable  action  for  relief,  in  the  cases  of  sup- 
posed lost  instruments,  an  affidavit  of  the  loss  of  the  instrument, 
and  that  it  is  not  in  the  possession  or  power  of  the  plaintiff,  is 
required.  East  India  Co.  v.  Boddam,  9  Ves.  466  ;  Leroy  v. 
Veeder,  1  Johns.  Cas.  417 ;  Pennington  v.  The  Oomrnor,  1 
Blackf.  (Ind.)  78.  But,  if  the  proof  of  the  loss  is  clear,  the  affi- 
davit thereof  may  be  dispensed  with.  Graham  v.  Haclcwith,  1 
A.  K.  Marsh.  (Ky.)  424.  So,  the  rule,  as  to  the  necessity  of  an 
affidavit,  is  held  to  apply  in  those  cases  only,  where,  if  the 
instrument  had  not  been  lost,  the  remedy  of  the  party  would 
have  been  at  law,  and  not  in  equity.  Purviaiice  v.  Holt,  3  Gilm. 
(111.)  395.  The  finding  of  the  lost  instrument  after  the  institution 
of  a  suit  for  the  recovery  of  its  amount,  does  not  oust  the  court 
of  jurisdiction.  Crawford  v.  Summers,  3  J.  J.  Marsh.  (Ky.)  300  ; 
Hamlin  v.  Hamlin,  3  Jones'  Eq.  (N.  C.)  191 ;  Miller  v.  Wells,  5 
Mo.  6.  Where  it  is  shown  that  the  plaintiff  voluntarily  burned 
or  destroyed  the  note,  inferior  or  secondary  evidence  of  the  con- 
tents of  the  note  will  not  be  received  in  evidence.  Blade  v. 
Noland,  12  Wend.  173. 

§  4.  Forfeitures.  From  a  very  early  period,  courts  of  equity 
have  granted  relief  against  penalties  and  forfeitures  in  certain 
cases.  Thus,  where  one  who  was  bound  in  an  obligation  to  pay 
money,  paid  it  and  took  no  acquittance,  or  took  an  acquittance 
without  seal,  or  "the  money  was  paid  within  a  short  time  after 
the  day,"  if  judgment  was  had  in  any  of  these  cases  at  law,  the 
court  of  chancery  would  give  relief.  This  jurisdiction  was  after- 
ward extended  to  cases  where  the  default  was  of  a  trifling  nature, 
irrespective  of  accident,  or  apparently  of  any  excuse,  as  when 
all  the  debt  had  been  paid  but  a  small  amount,  and  that  had 
been  tendered.  See  1  Spence's  Eq.  Juris.  629  ;  Underwood  v. 
Swan,  Car.  1  ;  1  Rep.  Ch.  86.  Finally,  the  jurisdiction  of  the 
court  was  so  enlarged  as  to  embrace  all  cases  where  relief  was 
sought  against  the  penalty  of  a  bond,  and  was  also  made  to 
include  the  case  of  mortgages,  where  courts  of  equity  constantly 
allow  a  redemption,  notwithstanding  a  forfeiture  at  law.  Len- 
non  V.  Napper,  2  Sch.  &  Lefr.  684,  685  ;  Seton  v.  Slade,  7  Ves. 
273,  274;  1  Story's  Eq.  Juris.,  §  89.  See  BostwicJc  v.  Stiles,  36 
Conn.  195  ;  Crane  v.  Hand's,  1  Root  (Conn.),  468 ;  Bofp  v, 
Whittlesey,  id.  310.     So,  on  the  other  hand,  where  the  vendor 


168  ACCIDENTS. 

reserved  a  lien  "to  be  enforced  within  six  years  or  stand  for 
nought  thereafter,"  and  he  was  prevented  by  the  occurrence  of 
the  civil  war,  from  enforcing  the  lien  within  the  time,  he  was 
granted  relief  in  equity.  AtTcins  v.  Hison,  25  Ark.  138.  A  court 
of  equity  never  lends  its  aid  to  enforce  a  forfeiture.  Warner  v. 
Bennett,  31  Conn.  468  :  Smith  v.  Jewett,  40  N.  H.  530.  But  a 
condition  in  a  mortgage,  that  upon  default  in  the  payment  of 
interest  for  a  specified  number  of  days  "after  the  time  limited 
for  the  payment  thereof,  the  principal  sum,  together  with  all 
arrears  of  interest,  shall,  at  the  option  of  the  mortgagee,  become 
and  be  due  and  payable  immediately,"  is  not  in  the  nature  of  a 
forfeiture,  to  be  relieved  against  by  a  court  of  equity.  It  is  an 
agreement  which  the  parties  have  a  right  to  make,  and  the  exten- 
sion of  credit  is  lawfully  made  dependent  upon  the  punctual 
payment  of  interest.  Upon  the  failure  of  the  mortgagor  to  per- 
form the  condition,  the  principal  becomes  due  and  payable,  by 
the  terms  of  his  contract,  and,  in  the  absence  of  fraud,  this,  like 
any  other  contract,  will  be  enforced  by  a  court  of  equity.  Ferris 
V.  Ferris,  16  How.  (N.  Y.)  102 ;  Valentine  v.  Van  Wagner,  37 
Barb.  60 ;  Rubens  v.  Prindle,  44  id.  336  ;  Noyes  v.  Clarlc,  7 
Paige,  179.  See  Malcolm  v.  Alle7i,  49  N.  Y.  (4  Sick.)  448. 
Equitable  relief,  in  cases  of  penalties  and  forfeitures,  is  said  to 
be  limited  to  such  cases  as  admit  of  compensation,  according  to 
the  original  intent  of  the  parties.  Giles  v.  Austin,  46  How.  (N. 
Y.)269. 

§5.  Executors  and  administrators,  errors  in  payments,  etc. 
There  are  many  cases  in  which  a  party  sustains  a  loss  or  injury, 
while  acting  in  entire  good  faith,  and  without  negligence,  and 
yet  the  law  affords  him  no  relief.  Thus,  executors  and  adminis- 
trators often  pay  debts  and  legacies  in  the  course  of  administra- 
tion, relying  in  entire  confidence  upon  a  sufficiency  of  assets  for 
all  purposes,  and  it  turns  out  from  unexpected  occurrences,  that 
there  is  a  deficiency  of  assets.  There  may  be  no  relief  at  law  in 
such  a  case,  but  they  will  be  entitled  to  it  in  a  court  of  equity, 
upon  the  ground,  that,  otherwise,  they  will  be  innocently  sub- 
jected to  an  unjust  loss,  from  what  the  law  itself  deems  an  acci- 
dent. Johnson  v.  Johnson,-  3  Bos.  &  Pul.  162,  169  ;  1  Story's 
Eq.  Juris.,  §  90.  But,  to  found  a  good  title  to  relief  in  equity,  it 
is  indispensable  that  there  should  have  been  no  negligence  or 
misconduct  on  the  part  of  such  executors  or  administrators  in 
the  payment  of  the  assets.  lb.  See  Brooking  v.  Jennings^  1 
Mod   174  ;  Brisbane  v.  Dacres,  5  Taunt.  143, 159. 


ACCIDENTS.  16^ 

Another  case  in  wliich  an  executor  or  administrator  would  be 
entitled  to  equitable  relief,  is  where  he  receives  money,  supposed 
to  be  due  from  a  debtor  to  the  estate,  and  pays  it  away  to  his 
testator's  creditors,  but  it  turns  out  that  the  debt  had  been  paid 
in  the  testator's  life-time.  The  supposed  debtor  may  recover 
back  the  money  in  equity  from  the  executor,  and  the  latter  may 
in  like  manner  recover  it  back  from  the  creditors.  Pooley  v. 
May,  1  P.  Wms.  355.  So,  if  an  executor  pays  one  legatee,  and 
there  is  afterward  a  deficiency  of  assets  to  pay  the  others,  a  court 
of  equity  will  interpose  to  compel  the  legatee,  so  paid,  to  refund 
a  proportional  part  of  what  he  has  received ;  unless  the  de- 
ficiency of  assets  has  been  occasioned  by  the  waste  of  the  exec- 
utor, in  wliich  case,  the  legatee  who  is  paid  may  retain  the 
advantage  gained  by  his  superior  diligence.  Orr  v.  Kaines,  2 
Yes.  194 ;  Anonymous,  1  P.  Wms.  495  ;  Lwpton  v.  Lupton,  2 
Johns.  Ch.  614, 626.  But  this  rule  does  not  apply  where  a  creditor, 
instead  of  a  legatee,  is  in  question.  The  latter  is  always  com- 
pellable to  refund  in  favor  of  the  former.  lb.  NoelY.  Hohinson, 
1  Vern.  90,  94.  In  Massachusetts,  an  executor,  who  has  volun- 
tarily paid  a  legatee,  caii,  on  a  subsequent  discovery  of  a  de- 
ficiency of  assets,  recover  back  the  money  at  law.  So,  if  he  has 
paid  some  creditors  in  full,  on  the  supposition  of  a  sufficiency  of 
assets,  and  it  afterward  turns  out  that  there  is  a  deficiency  of 
assets,  he  may  recover  back  from  the  creditors  so  paid,  in  pro- 
portion to  the  deficiency.  Heard  v.  Drake,  4  Gray,  514 ;  Walker 
V.  HiU,  17  Mass.  380 ;  Bliss  v.  Lee,  17  Pick  83  ;  Walker  v.  Brad- 
ley, 3  id.  261 ;  1  Story's  Eq.  Juris.,  §  92,  n.  ;  see  Riddle  v.  Man- 
demlle,  5  Cranch  (U.  S.),  329. 

§  6.  Execution  of  powers.  As  it  regards  the  defective  execu- 
tion of  powers,  resulting  from  accident,  courts  of  equity  will 
interfere  to  grant  relief  in  favor  of  persons,  in  a  moral  sense 
entitled  to  the  same,  where  there  are  no  opposing  equities  on  the 
other  side.  Thus,in  the  absence  of  any  countervailing  equity,  the 
execution  of  a  power  will  be  established  in  favor  of  creditors. 
Dennison  v.  Ooeliring,  7  Penn.  St.  175.  Or  a  purchaser. 
Schenck  v.  Ellingmood,  3  Edw.  Ch.  175.  Or  to  provide  for  the 
support  of  a  wife  or  children,  or  a  charity  ;  but  relief  will  not 
be  granted  in  favor  of  the  donee  of  the  power,  or  a  husband  or 
grandchildren.  Porter  v.  Turner,  3  Serg.  &  Rawle,  108.  Or  re- 
mote relations,  or  strangers  generally.  1  Story's  Eq.  Juris.,  §  95  ; 
3  Broom  &  Had.  Com.  61  (Wait's  ed.,  vol.  2,  65).  And  where  the 
power  is  specially  created  by  statute,  whatever  formalities  are 

Vol.  L  — 22 


•170  ACCIDENTS. 

required  must  be  strictly  complied  with  or  the  defect  may  not  be 
helped  in  equity.  Smith  v.  Bowes,  38  Md.  463.  See  Gridley' s 
Heirs  v.  Pliillips,  5  Kan.  349  ;  Stewart  v.  Stokes,  33  Ala.  494  ;  1 
Story's  Eq.  Juris.,  §  96.  So,  when  nothing  has  been  done,  or  at- 
tempted to  be  done,  toward  the  execution  of  a  power,  equity,  in 
general,  will  not  interfere,  unless  the  instrument  creating  the 
power  shall  have  vested,  or  recognized,  in  third  persons,  rights 
to  secure  which  the  execution  of  the  power  is  necessary.  Barr 
V.  Hatch,  3  Ohio,  527.  And,  generally,  defects  which  are  of  the 
very  essence  or  substance  of  the  power  will  not  be  aided  in 
equity  ;  as  where  it  is  required  to  be  executed  by  will,  and  it  is 
executed  \Sy  an  irrevocable  and  absolute  deed.  But  defects  which 
are  not  of  the  very  essence  or  substance  of  the  power  may  gen- 
erally be  remedied.  Thus,  a  defect  which  arises  from  executing 
the  power  by  n  will,  when  it  is  required  to  be  by  a  deed,  or  other 
instrument  inter  vivos,  will  be  aided.  1  Story's  Eq.  Juris.,  §  97; 
and  see  3  Broom  &  Had.  Com.  61  (Wait's  ed.,  vol.  2,  65).  And 
relief  is  given  in  cases  where  deeds  are,  by  mistake,  sealed  and 
delivered  in  the  name  of  the  attorney,  instead  of  the  principal, 
on  the  ground  of  aiding  a  defective  execution  of  powers.  Kear- 
ney V.  Yaughan,  50  Mo.  284  ;  Salman  v.  Hoffman,  2  Cal.  142  ;  1 
Am.  Lead.  Cas.  608.  So  the  non-execution  of  a  sheriff's  deed, 
by  reason  of  death,  has  been  relieved  against.  Stewart  y.  Stokes, 
33  Ala.  494.  But  equity  has  never  ventured  to  correct  a  defect- 
ive execution  of  a  will,  the  mode  of  executing  that  particular 
instrument  being  one  to  which  the  lepjislature  has  paid  especial 
attention ;  and  though  through  the  accidental  ignorance  of  an 
intending  testator,  he  may  fail  to  carry  out  his  intention,  this  is 
an  irremediable  accident,  and  rightly  so,  for  reasons  sufficiently 
obvious.    3  Broom  &  Had.  Com.  61  (Wait's  ed.,  vol.  2,  65). 

The  cases  of  most  common  occurrence,  in  which  equity  will 
always  interfere  and  grant  suitable  relief,  are  those  where  the 
power  is  accompanied  with  a  trust.  The  principle  running 
through  all  the  cases  is  stated  to  be,  ' '  that  if  the  power  is  one 
which  it  is  the  duty  of  the  party  to  execute,  made  his  duty  by 
the  requisition  of  the  will,  put  upon  him  as  such  by  the  testator, 
who  has  given  him  an  interest  extensive  enough  to  enable  him 
to  discharge  it,  he  is  a  trustee  for  the  exercise  of  his  power,  and 
without  discretion  whether  he  will  exercise  it  or  not ;  and  the 
court  adopts  the  principle  relative  to  trusts,  and  will  not  permit 
his  negligence,  accident,  or  other  circumstances,  to  disappoint 
the  interest  of  those  for  whose  benefit  he  is  called  upon  to  exe- 


ACCIDENTS.  171 

cute  it."  Lord  Eldoi^,  in  Brown  v.  Higgs,  8  Yes.  574  ;  and  see 
Withers  v.  Yeadon,  1  Rich.  (S.  C.)  Eq.  325 ;  Gibhs  v.  Marsh,  2 
Mete.  (Mass.)  243 ;  Osgood  v.  FranJclin,  2  Johns.  Ch.  1 ;  S.  C. 
affirmed,  14  Johns.  527. 

§  7.  Transfer  of  bills  and  notes.  Relief  will  also  be  granted 
in  equity,  where,  upon  a  transfer  of  a  bill  of  exchange,  or  a 
promissory  note,  there  has  been  an  accidental  omission  by  the 
party  to  indorse  it  according  to  the  intention  of  the  transfer. 
The  party,  if  living,  otherwise,  his  executor  or  administrator, 
may  be  compelled  in  equity  to  make  the  indorsement,  and  if  the 
party  has  since  become  bankrupt,  or  his  estate  is  insolvent,  his 
assignees  will  be  compelled  to  make  it.  The  transaction  amounts 
to  an  equitable  assignment,  and  a  court  of  equity  will  clothe  it 
with  a  legal  effect  and  title.  Watkins  v.  Maule,  2  Jac.  &  Walk. 
242;  1  Story's  Eq.  Juris.,  §  99,  &. 


ARTICLE  III. 

WHEN  NO  ACTION  LIES. 

Section  1.  Accident  preventing  fulfillment  of  contract.  A  dis- 
tinction under  this  head  has  been  thus  stated  in  a  leading  case : 
"Where  the  law  creates  a  duty  or  charge,  and  the  party  is  dis- 
abled to  perform  it  without  any  default  in  him,  and  he  hath  no 
remedy  over,  there  the  law  will  excuse  him  ;  as  in  the  case  of 
waste,  if  a  house  be  destroyed  by  tempest,  or  by  enemies,  the 
lessee  is  excused.  But  when  the  party,  by  his  own  contract,  cre- 
ates a  duty  or  charge  upon  himself,  he  is  bound  to  make  it  good, 
if  he  may,  notwithstanding  any  accident  by  inevitable  necessity; 
because  he  might  have  provided  against  it  by  his  contract.  And, 
therefore,  if  the  lessee  covenant  to  repair  a  house,  though  it  be 
burnt  by  lightning,  or  thrown  down  by  enemies,  yet  he  ought  to 
repair  it."  Paradine  v.  Jane,  Aleyn,  26,  27.  There  is  no  ground 
for  the  interference  of  equity  in  such  a  case.  See  Thompkins  v. 
Dudley,  25  N.  Y.  (11  Smith)  272;  Dexter  v.  Norton,  47  id.  (2 
Sick.)  62  ;  S.  C,  7  Am.  R.  415  ;  School  Trustees  v.  Bennett,  3 
Dutch.  (N.  J.)  515.  The  fact  that  performance  of  a  contract  is 
rendered  more  burdensome  and  expensive,  by  a  law  enacted  after 
it  is  entered  into,  does  not  exonerate  a  party  from  its  obligations. 
Baker  v.  Johnson,  42  N.  Y.  (8  Hand)  126.  See  this  subject  dis- 
cussed at  length  under  head  of  Performance. 

§  2.  Covenant  to  pay  rent.    Where  there  is  an  express  cove- 


172  ACCIDENTS. 

nant  to  pay  rent,  the  party  must  perform  the  covenant,  although 
the  premises  are  accidentally  destroyed  by  fire  during  the  term. 
It  is  a  calamity  to  be  borne  by  both  parties.  The  tenant  and  the 
landlord  suffer  according  to  their  proportions  of  interest  in  the 
property  burnt ;  the  tenant  during  the  term,  and  the  landlord 
for  the  residue.  See,  generally,  1  Story's  Eq.  Juris.,  §  102;  Fowler 
V.  Bott^  6  Mass.  63;  Hallett  v.  Wylie.  3  Johns.  44;  McKeckniev. 
Sterling,  48  Barb.  330  ;  Breioer  v.  Herbert,  30  Md.  301  ;  Dexter 
V.  Norton,  47  N.  Y.  (2  Sick.)  62  ;  S.  C,  7  Am.  R.  415  ;  Suydam 
V.  Jackson,  54  N.  Y.  (9  Sick.)  450 ;  Truesdell  v.  BootJi,  4  Hun 
(K  Y.),  100;  S.  C,  6  N.  Y.  S.  C.  (T.  &  C.)  379. 

§  3.  Negligence  of  party.  A  party  seeking  relief  in  equity, 
must  show  a  title  to  relief  unmixed  with  any  gross  misconduct 
or  negligence  of  himself  or  his  agents.  Courts  of  equity,  there- 
fore, deny  relief  to  a  party  upon  the  ground  of  accident,  if  the 
accident  has  resulted  from  his  own  gross  negligence.  The  gen- 
eral rule  is,  that  if  a  party  becomes  remediless  at  law  by  negli- 
gence, he  shall  not  be  relieved  in  equity.  Penny  v.  Martin,  4 
Johns.  Ch.  569;  Mar.  Ins.  Co.  v.  Hodgson,  TCranch  (U.S.),  336. 

§  4.  Equal  equities.  So,  courts  of  equity  afford  no  relief  on 
the  ground  of  accident,  where  the  other  party  is  entitled  to  equal 
protection.  The  maxim  is,  that  "  between  equal  equities  the  law 
will  prevail."  See  Adams'  Eq.  148  ;  Landon  v.  Piatt,  34  Conn. 
624  ;  Gregory  v.  Savage,  32  id.  261. 

§  5.  Bona  fide  purchaser.  Equity  will  not  interfere  on  the 
ground  of  accident,  against  a  bona  fide  purchaser  of  the  legal 
title  for  a  valuable  consideration  and  without  notice,  in  favor  of 
one  who  has  but  an  equitable  title.  In  the  view  of  a  court  of 
equity,  the  former  is  as  much  entitled  to  assistance  and  protec- 
tion as  the  latter.  See  Bush  v.  Golden,  17  Conn.  602  ;  1  Story's 
Eq.  Juris.,  §  108. 


ACCOUNTING.  173 


CHAPTER  lY. 

OF  ACTIONS   RELATING  TO,  OR  FOUNDED  UPON,  AN 

ACCOUNTING. 


ARTICLE  I. 

ACTION"  OF  ACCOUNT  AT  LAW. 

Section  1.  When  the  action  lies.  Account  is  a  very  ancient 
form  of  action  at  the  common  law,  and  all  the  authorities  agree 
in  representing  it  to  be  one  of  the  most  difficult,  dilatory  and  ex- 
pensive actions  that  ever  existed.  It  has  long  since  given  place 
to  other  remedies  both  in  England  and  the  United  States,  and 
may  now  be  regarded  as  obsolete.  In  some  of  the  States,  how- 
ever, the  action  is  in  use  in  a  modified  form,  to  supply  defects  in 
their  system  which  arise  from  the  want  of  a  court  of  equity.  See 
Duncan  v.  Lyon,  3  Johns.  Ch.  351  ;  CouscTier  v.  Tuolan,  4 
Wash.  442  ;  Griffith  v.  Willing,  3  Binn.  (Penn.)  317;  Stewart  v. 
Kerr,  1  Morr.  (Iowa)  240  ;  McMurray  v.  Rawson,  3  Hill  (N.  Y.). 
69 ;  Munroe  v.  Luke,  1  Mete.  (Mass.)  464.  At  common  law, 
the  action  of  account  would  lie  against  guardians  in  socage, 
bailifi's  and  receivers ;  and,  in  favor  of  trade,  by  one  merchant 
against  another.  By  statute,  as  in  New  York  and  Virginia,  it 
would  lie  against  a  joint  tenant  or  tenant  in  common  of  real 
estate  for  receiving  more  than  his  just  share  and  proportion.  See 
McMurray  v.  Bawson,  3  Hill,  59  ;  3  Rob.  Pr.  411 ;  Appleby  v. 
Broion,  24  N.  Y.  (10  Smith)  143  ;  S.  C,  23  How.  207. 

§  2.  When  the  action  does  not  lie.  By  the  old  common  law, 
account  did- not  lie  for  one  tenant  in  common  against  his  co-ten- 
ant, unless  the  latter  had  taken  all  the  profits  of  the  land  ;  nor 
by  a  joint  tenant  against  his  companion,  unless  the  latter  had  re- 
ceived all  the  profits  for  the  common  benefit  of  both,  and  not  for 
his  own  use  merely.  Archb.  N.  P.  292.  Nor  could  the  action 
be  brought  by  an  executor  or  administrator,  nor  against  an  ex- 
ecutor, administrator,  or  infant  (lb.  See  Appleby  v.  Brown,  24 
N.  Y.  [10  Smith]  143) ;  and  it  would  only  lie  between  two  mer- 
chants, and  not  where  the  partnership  consisted  of  a  larger  num- 
ber, lb.;  Portsmouth  v.  Donaldson,  32  Penn.  St  202;  Duryea 
V.  Wldtcomb.  31  Vt.  395. 


174  ACCOUNTING. 

However,  it  is  found  by  experience  that  the  most  ready  and 
eifectual  way  to  settle  these  matters  of  account  is  in  a  court  of 
equity  ;  and  the  remedy  by  action  of  account  has  been  very  gen- 
erally supplanted  by  the  more  beneficial  powers  of  such  a  court, 
whereby  not  only  the  production  of  papers  and  an  account  can 
be  compelled,  but  also  an  answer  on  oath  can  be  required  and  a 
decree  had  for  the  sum  due  from  the  defendant.  See  3  Bl.  Com. 
162,  163  ;  Taff  Yale  R.  C.  v.  Nixon,  1  H.  L.  Cas.  Ill ;  Neal  v. 
KeeVs  Executors,  4  T.  B.  Monr.  (Ky.)  162  ;  Attorney -General  v. 
Mayor,  etc.,  of  Dublin,  1  Bligh  (N.  S.),  336. 


ARTICLE  II. 

ACTIONS  OF  ACCOUNT  IN"  EQUITY. 

Section  1.  In  general.  Courts  of  equity  began  to  assume  juris- 
diction in  matters  of  account  at  a  very  early  period ;  and  ihey 
have  for  a  great  length  of  time  exercised  a  general  jurisdiction 
not  only  in  all  cases  of  mutual  accounts,  but  have  extended  the 
remedy  to  a  vast  variety  of  cases  to  which  the  remedy  at  law 
never  was  applicable.  No  precise  rule  can  be  laid  down  on  the 
subject,  but  it  may  be  stated  generally,  that  in  all  cases  in  which 
an  action  of  account  would  be  the  proper  remedy  at  law,  and  in 
all  cases  where  a  trustee  is  a  party,  the  jurisdiction  of  a  court  of 
equity  over  accounts  is  undoubted.  But  in  transactions  not  of 
this  peculiar  character,  great  complexity  ought  to  exist  in  the 
accounts,  or  some  difiiculty  at  law  should  interpose,  some  dis- 
covery should  be  required,  in  order  to  induce  a  court  of  chancery 
to  exercise  jurisdiction.  Bolier  v.  Biddle,  Baldw.  C.  C.  394 ;  Sey- 
mour V.  Long  Dock  Co.,  20  N.  J.  Eq.  396  ;  Lafever  v.  Bellmyer, 
5  W.  Va.  33  ;  Gloninger  v.  Hazard,  42  Penn.  St.  389  ;  Cummins 
v.  White,  5  Blackf.  (Ind.)  356;  Smith  v.  Lewaux,  2  De  G.,  J.  & 
S.  1 ;  Foiole  v.  Lawrason,  5  Pet.  (U.  S.)  495. 

§  2.  No  remedy  at  law.  Jurisdiction  in  equity,  in  cases  of 
account,  has  been  placed  by  Mr.  Justice  Blackstone  upon  the 
sole  ground  of  the  right  of  the  courts  of  equity  to  compel  a  dis- 
covery. 3  Black.  Comm.  437,  439.  But  this,  although  admitted 
to  be  a  strong  ground  of  jurisdiction,  is  not  in  modern  times 
regarded  as  the  sole  ground.  Chancery  has  jurisdiction  of 
matters  of  account,  notwithstanding  no  discovery  is  required. 
Ludlow  V.  Simond,  2  Caines  (N.  Y.),  1 ;  and  this  jurisdiction  is 
founded  upon  the  consideration,  that  the  remedy  in  equity,  in 


ACCOUNTING.  175 

cases  of  account,  is  generally  more  complete  and  adequate  than 
it  is  or  can  be  at  law.  lb.  Duncan  v.  Lyon,  3  Johns.  Ch.  361 ; 
Ratlibone  v.  Warren^  10  Johns.  595  ;  McLaren  v.  Steapp,  1  Ga. 
876  ;  Walker  v.  Cheemr,  35  N.  H.  839  ;  Watt  v.  Conger,  21  Miss. 
412;  White  Y.  Hampton,  10  Iowa,  288 ;  Scruggs  v.  Luster,  1  Heisk. 
(Tenn.)  150.  So,  it  is  the  well-established  American  doctrine, 
that  where  equity  obtains  jurisdiction  of  a  cause  for  any  purpose, 
it  will  generally  retain  it,  until  complete  justice  is  effected.  Corhy 
V,  Bean,  44  Mo.  879 ;  Peoria  v.  JoTinson,  56  111.  45 ;  Boyd  v. 
Hunter,  44  Ala.  705  ;  Day  v.  Gumming s,  19  Vt.  496;  Traip  v. 
Gould,  15  Me.  82 ;  Lafever  v.  Bellmyer,  5  W.  Ya.  33 ;  DeBemer 
V.  Drew,  39  How.  (N.  Y.)  466  ;  57  Barb.  438  ;  RatJibone  v.  War- 
ren, 10  Johns.  595.  But  this  maxim  is  properly  applicable, 
only  where  the  court  obtains  legitimate  jurisdiction  of  the 
cause,  and  for  some  reason,  affecting  the  cause,  or  some  portion 
of  it.  Thus,  if  proper  application  is  made  to  a  court  of  equitj^  for 
an  injunction,  to  restrain  the  infringement  of  a  patent,  the  court 
will  retain  the  cause,  and  will  settle  other  matters  between  the 
parties,  inseparably  connected  with  the  infringement,  but  which 
do  not  constitute  ground  for  original  equitable  jurisdiction. 
Brooks  V.  Stolley,  8  McLean  (C.  C),  523,  So,  where  application 
is  made  in  equity  by  one  partner,  to  restrain  his  copartners  from 
violating  partnership  articles,  the  cause  will  be  retained,  and 
other  matters  disposed  of,  not  strictly  of  equitable  cognizance. 
See  1  Story's  Eq.  Juris.,  §74,  h;  Green  v.  Spring,  ^'6  111.280; 
Daniel  v.  Green,  42  id.  472  ;  DeBemer  v.  Drew,  39  How.  (N.  Y.) 
466  ;  57  Barb.  438.  If,  however,  the  object  of  the  party  in  com- 
ing into  equity  is  general  discovery  merely,  it  gives  the  court 
no  jurisdiction  of  the  cause.  1  Story's  Eq.  Juris.,  §  74,  c;  see 
Fowle  V.  Lawrason,  5  Pet.  (U.  S.)  495 ;  Stacy  v.  Pearson,  3  Rich. 
Eq.  (S.  C.)  148  ;  Lyons  v.  Miller,  6  Gratt.  (Va.)  427,  438 ;  Mitcliell 
V,  Greene,  10  Mete.  (Mass.)  101  ;  Pease  v.  Pease,  8  id.  395. 

§  3.  Mutual  accounts.  Courts  of  equity  exercise  a  general  ju- 
risdiction in  all  cases  of  mutual  accounts,  and  a  fortiori,  when 
complicated,  and  this  upon  the  ground  of  the  inadequacy  of  the 
remedy  at  law.  Ludlow  v.Simond,  2  Cai.  Cas.  (N.  Y.)  1,  88,  52 ; 
Lafever Y.  Bellmyer,  5  W.  Va.  83  ;  Gloninger  v.  Hazard,  42  Penn. 
St.  389.  So,  such  courts  also  entertain  jurisdiction,  when  the 
accounts  to  be  examined  are  on  one  side  only,  and  a  discovery 
is  wanted  in  aid  of  the  account,  and  is  obtained.  lb.  See  Oil  Co. 
V.  Adams,  6  Phila.  (Penn.)  182 ;  Pearl  v.  Nashmlle,  10  Yerg. 
(Tenn.)  179.    But  where  the  accounts  are  all  on  one  side,  and  no 


176  ACCOUNTING. 

discovery  is  sought  or  required,  the  jurisdiction  will  not  be 
maintainable.  Wallcer  v.  Cheever,  25  N.  H.  339.  See  McMartin 
V.  BingJiam,  27  Iowa,  234  ;  Haywood  v.  Hutchins,  65  N.  C.  574. 

In  illustration  of  the  general  principles  here  stated,  it  has  been 
held  that  a  court  of  equity  may  properly  entertain  jurisdiction 
where  there  has  been  a  running  account  for  many  years  between 
the  parties,  consisting  of  numerous  items,  notwithstanding 
assum'psit  would  also  lie.  Hickman  v.  Stout,  2  Leigh  (Va.),  6. 
And  where  tlie  accounts  between  .  the  clerk  and  marshal  of  a 
federal  court  had  continued  for  a  long  time,  until  they  became 
complicated,  it  was  held,  that  (jhancery  would  take  jurisdiction 
to  enforce  a  settlement  of  the  account,  though  there  might  have 
been  originally,  and  still,  a  remedy  at  law.  Hay  v.  Marshall,  3 
Humph.  (Tenn.)  623 ;  and  see  KirJcman  v.  Vaulier,  7  Ala.  217. 
So,  a  series  of  consignments  on  one  side,  and  of  payments  on 
the  other,  constitutes  an  account  which  may  be  settled  by  suit  in 
equity.  McLin  v.  McNamara,  2  Dev.  &  B.  Eq.  (N.  C.)  82  ;  and 
where  a  plaintiflf  seeks  the  taking  and  settling  of  a  mere  partner- 
ship account,  it  belongs  to  a  court  of  equity.  Taylor  v.  Holman^ 
Mill's  Const.  (S.  C.)  172.  A  bill  in  equity  is  held  to  lie  for  an 
account  of  goods  sold  on  commission,  if  complicated,  or  if  there 
be  embarrassment  in  making  proof,  though  the  items  are  all  on 
one  side.  Taylor  v.  Tompkins,  2  Heisk.  (Tenn.)  89 ;  and  see 
Hargrave  v.  Conroy,  19  N.  J.  Eq.  281.  But  where  the  transac- 
tions between  the  parties  have  no  business  connection  with  each 
other,  but  stand  entirely  independent,  as  in  case  of  a  physician 
who  renders  services  professionally  to  a  farmer,  and  also  buys 
produce  of  him,  there  is  no  jurisdiction  in  equity.  Haywood  v. 
HutcMns,  m  N.  C.  574. 

In  New  Jersey,  the  court  of  chancery  will  not  entertain  a  bill 
by  one  partner  of  a  lottery  firm  for  a  discovery  and  accounting, 
and  a  division  of  the  proceeds  of  a  lottery,  which  is  illegal,  and 
a  misdemeanor  by  the  laws  of  that  State.  And  the  fact  that  the 
lottery  was  conducted  in  another  State  where  it  was  allowed  by 
law,  or  that  the  drawing  has  been  completed,  so  that  nothing  un- 
lawful remains  to  be  done  (an  accounting  and  distribution  only 
being  prayed),  will  make  no  difference.  Watson  v.  Murray,  23 
N.  J.  (Law)  257. 

§  4.  Appropriation.  In  matters  of  account  where  several  debts 
are  due  by  the  debtor  to  the  creditor,  it  frequently  becomes  im- 
portant to  the  parties  to  ascertain  to  which  of  such  debts  a  par- 
ticular payment  should  be  appropriated.    It  is  not  easy  in  every 


ACCOUNTING.  177 

case  to  say  how  the  appropriation  ought  to  be  made,  but  the  fol- 
lowing rules  may  be  deemed  well  settled. 

AVhere  a  person  owes  upon  several  distinct  accounts,  he  has  a 
right  to  direct  his  payments  to  be  applied  to  any  one  of  them  as 
he  chooses.  This  is  called  the  right  of  appropriation.  Cham- 
penoes  v.  Fort,  45  Miss.  355  ;  King  v.  Andrews,  30  Ind.  429 ; 
Leef  V.  Goodwin,  Taney  (C.  C),  460;  Bacon  v.  Brown,  1  Bibb 
(Ky.),  334.  But  if  this  right  be  not  exercised  at  the  time  of  pay- 
ment, the  creditor  may  at  any  time  apply  the  payment  to  which 
account  he  pleases.  Calvert  v.  Carter,  18  Md.  73 ;  Haymes  v. 
Walte,  14  Cal.  446  ;  Mayor,  etc.  v.  Patten,  4  Cranch  (U.  S.),  317; 
Hargroves  v.  Cooke,  15  Ga.  321 ;  Nuttall  v.  Brannin,  5  Bush 
(Ky.),  11.  See  Waterman  y.  Younger,  49  Mo.  413;  Howard  \\ 
McCall,  21  Gratt.  (Va.)  205.  If  no  appropriation  be  made  or  in- 
dicated by  either  party,  the  application  devolves  on  the  law,  or 
the  court ;  which,  it  is  said,  will  direct  it  according  to  equity. 
1  Am.  Lead.  Cas.  283;  Emery  v.  Fichout,  13  Vt.  15;  Leef  v. 
Goodwin,  Taney  (C.  C),  460;  Seymour  v.  Yan  Slyclc,  8  Wend. 
403  ;  Campbell  v.  Yedder,  1  Abb.  Ct.  App.  (N.  Y.)  295  ;  S.  C,  3 
Keyes,  174.  Generally,  the  payments  will  be  applied  to  extin- 
guish the  debts  according  to  priority  of  time.  Sprague  v,  Hazen- 
winkle,  53  111.  419  ;  Langdon  v.  Boicen,  46  Vt.  512 ;  St.  Albans 
v.  Failey,  id.  448;  FaircMld  v.  Holly,  10  Conn.  176;  Cromp- 
ton  v.  Pratt,  105  Mass.  255.  But  this  rule  is  not  universal.  If 
it  appears  that  the  intention  of  the  parties  was  otherwise,  the 
court  will  give  effect  to  such  intention.  So,  if  there  are  separate 
demands,  part  of  which  are  secured  and  part  not  secured,  the 
application  will  be  made  on  those  not  secured.  Langdon  v. 
Bowen,  46  Vt.  512 ;  Field  v.  Holland,  6  Cranch  (U.  S.},  8.  See 
Yance  v.  Monroe,  4  Gratt.  (Va.)  53  ;  Stamford  Bank  v.  Benedict, 
15  Conn.  438;  Chester  v.  Wheelwright,  15  id.  562;  Callahan 
v.  Boazman,  21  Ala.  246 ;  Campbell  v.  Yedder,  1  Abb.  Ct.  App. 
(N.  Y.)  295  ;,S.  C,  3  Keyes,  174. 

A  creditor  has  no  right  to  apply  a  general  payment  to  an  item 
of  account  which  is  illegal,  as  a  claim  for  usurious  interest ; 
but  if  the  debtor  himself  apply  the  payment  to  an  illegal  demand, 
he  cannot  afterward  revoke  it.  Rohan  v.  Hanson,  11  Cush. 
44  ;  Duncan  v.  Helm  22  La.  Ann.  418 ;  Bancroft  v.  Pumas,  21 
Vt.  456  ;  Ayer  v.  Hawkins,  19  id.  26 ;  Caldwell  v.  Wentworth, 
14  N.  H.  431 ;  Treadwell  v.  Moore,  34  Me.  115.  So,  application 
of  a  general  payment  may  be  made  to  a  debt  within  the  statute 
of  frauds.    Haynes  v.  Nice,  100  Mass.  327,  or  to  a  debt  barred 

Vol.  L  — 23 


178  ACCOUNTING. 

by  the  statute   of  limitations.    Jackson  v.  BurTce^  1  Dill.  311 ; 
Ramsay  v.  Warner,  97  Mass.  8. 

Payments  by  a  debtor  upon  a  running  account  made  partly 
before  and  partly  after  his  discharge  in  bankruptcy,  of  which 
proceeding  the  creditor  had  no  notice,  may  be  applied  by  the 
latter  to  the  items  first  due  in  the  account.  Hill  v.  Robbins,  22 
Mich.  477. 

Where  a  member  of  a  firm  is  indebted,  and  the  firm  owe  the 
same  person,  a  payment  made  by  such  partner  will  be  presumed 
to  be  on  his  own  account,  Johnson  v.  Boone,  2  Harr.  (Del.)  172  ; 
see  FatTcMld  v.  Holly,  10  Conn.  175  ;  Sneed  v.  Wiester,  2  A. 
K.  Marsh.  (Ky.)  277.  But  if  the  payment  be  of  money  belong- 
ing to  the  firm,  it  must  be  appropriated  to  the  discharge  of  the 
partnership  debt.     Thompson  v.  Brown,  Moody  &  M.  40. 

The  presumption  that  where  a  variety  of  transactions  are  in- 
cluded in  one  general  accoant,  the  items  of  credit  are  to  be 
appropriated  to  the  items  of  debit  in  order  of  date  in  the  absence 
of  other  appropriation.  But  such  presumption  may  be  rebutted 
by  circumstances  of  the  case  showing  that  such  could  not  have 
been  the  intention  of  the  parties.  See  City  Discount  Co.  v.  Mc- 
Lean, L  R.,  9  C.  P.  692  ;  S.  C,  10  Eng.  R.  (Moak's  ed.)  863. 
But  such  presumption  is  not  rebutted  by  the  fact  that  the  debit 
items  are  for  goods  sold  on  condition  that  they  shall  not  become 
the  property  of  the  purchaser  till  paid  for,  even  though  a  mem 
orandum  of  the  condition  is  entered  by  the  seller  in  his  books 
containing  the  account.  Crompton  v.  Pratt,  105  Mass.  255.  For 
a  full  discussion  of  the  subject  of  appropriation  of  payments, 
see  "  Payment.' ' 

§  5.  Agency.  It  is  the  duty  of  an  agent,  where  the  business  in 
which  he  is  employed  admits  of  it,  or  requires  it,  to  keep  regular 
accounts  of  all  his  transactions  on  behalf  of  his  principal,  not 
only  of  his  payments  and  disbursements,  but  also  of  his  re- 
ceipts ;  and  to  render  such  accounts  to  his  principal  at  all  reason- 
able times,  without  any  suppression,  concealment,  or  overcharge. 
Story  on  Agency,  §  203  ;  Eaton  v.  Welton,  32  N.  H.  352.  See 
Haas  V.  Damon,  9  Iowa,  589.  This  duty  is  strictly  enforced  in 
courts  of  equity  ;  the  most  important  agencies  falling  under  the 
cognizance  of  such  courts  being  those  of  attorneys,  factors,  bail- 
ifts,  consignees,  receivers,  and  stewards.  In  most  of  these  agen- 
cies, there  are  mutual  accounts  between  the  parties;  but,  even 
where  the  account  is  on  one  side  only,  the  relation  naturally 
gives  rise  to  great  personal  confidence,  and  in  cases  of  contro- 


ACCOUNTING.  179- 

versy  the  principal  is  seldom  able  to  establish  his  rights,  or  to 
ascertain  the  true  state  of  the  accounts,  without  resorting  to 
equity  to  compel  a  discovery  by  the  agent.  See  1  Story's  Eq. 
Juris.,  §  462;  Ormond  v.  Hutchinson^  13  Yes.  53;  Taylor  v. 
Tompkins^  2  Heisk.  (Tenn.)  89  ;  Massey  v.  Bavies,  2  Yes.,  Jr.,  318. 
See  mch  v.  Austin,  40  Vt.  416.  So,  where  the  accounts  are  too 
complicated  to  be  dealt  with  in  a  court  of  law,  a  court  of  equity 
will  entertain  jurisdiction.  Hill  v.  South  Staffordshire  Railway 
Co.,  11  Jur.  (N.  S.)  192.  The  mere  relation  of  principal  and 
agent  does  not,  however,  entitle  the  principal  to  come  into  a 
court  of  equity  for  an  account,  if  the  matter  can  be  fairly  tried 
at  law  (1  Story's  Eq.  Juris.,  §  462,  a;  Barry  v.  Stevens,  3  Beav. 
258) ;  nor  can  an  agent  maintain  a  bill  for  an  account  solely  upon 
the  ground  that  he  was  entitled  to  commissions  for  his  services. 
1  Story's  Eq.  Juris.,  §462,  a.  See  Baskins  v.  Burr,  106  Mass. 
48 ;  ITar grave  v.  Conroy,  4  C.  E.  Green  (N.  J.),  281 ;  Moxon  v. 
Bright,  L.  R.,  4  Ch.  App.  292.  And,  in  general,  a  bill  will  not 
lie  by  an  agent  against  his  principal,  for  an  account,  unless  some 
special  ground  is  laid,  as  the  incapacity  to  get  proof  unless  by 
discovery.  Dinwiddle  v.  Bailey,  6  Yes.  136 ;  Wilson  v.  Mallett, 
4  Sandf.  (S.  C.)  112.  But  in  the  case  of  stewards,  a  discover}^ 
from  his  principal  is  ordinarily  necessary,  for,  as  has  been  said, 
"the  nature  of  this  dealing  is,  that  money  is  paid  in  confidence, 
without  vouchers,  embracing  a  great  variety  of  accounts  with  the 
tenants;  and  nine  times  in  ten  it  is  impossible  that  justice  be 
done  to  the  steward,"  without  going  into  equity  for  an  account 
against  his  principal.  lb.  See  1  Story' s  Eq.  Juris.,  §  462,  note ; 
Lord  Hardwicke  v.  Yernon,  4  Yes.  411,  418,  note. 

It  has  been  held  that  an  agent  cannot  be  called  on  for  an  ac- 
counting in  chancery,  where  the  agency  was  for  a  single  transac- 
tion, as  a  single  consignment,  or  the  delivery  of  money  to  be 
laid  out  in  the  purchase  of  an  estate.  Coquillard  v.  Suydam,  8 
Blackf.  (Ind.)  24 ;  Navulshaw  v.  Brownrigg,  7  Eng.  Law  &  Eq. 
106.  But  although  a  suit  at  law  may  be  often  maintainable  in 
such  cases,  the  party  frequently  has  an  election  of  remedy,  and 
may  resort  to  a  court  of  equity  for  the  attainment  of  justice. 
Scott  V.  Surman,  Willes.  405 ;  Zetelle  v.  Myers,  19  Gratt.  (Ya.) 
62.  The  true  source  of  jurisdiction  is  the  necessity  of  reaching 
the  facts  by  a  discovery ;  and  having  jurisdiction  for  such  a  pur- 
pose, a  court  of  equity,  to  avoid  multiplicity  of  suits,  will  pro- 
ceed to  administer  the  proper  relief.  PostY.  Kimberly,  9  Johns. 
493 ;  Porter  v.  Spencer,  2  Johns.  Ch.  171 ;  Ludlow  v.  Simond,  2 


160  ACCOUNTING. 

Cai.  Cas.  1,  38,  52.  See  Durani  v.  Einstein,  5  Rob.  (N.  Y.)  423 ; 
35  How.  223 ;  Oonyngham'  s  Appeal,  57  Penn.  St.  474 ;  Mason  v. 
J/aTi,  3  Desau.  116;  Hale  Y.Hale,  4  Humph.  (Tenn.)  183. 

Cases  of  account  between  trustees  and  cestuis  que  trust  come 
very  appropriately  within  the  jurisdiction  of  courts  of  equity, 
and  the  same  general  rules  are  applicable  as  in  other  cases  of 
agency.  A  trustee  is  not  permitted  to  make  the  concerns  of  his 
trust  profitable  to  himself,  nor,  on  the  other  hand,  is  he  liable 
for  any  loss  occurring  in  the  discharge  of  his  duties,  in  the  ab- 
sence of  negligence,  malversation,  or  fraud  on  his  part.  See 
Quackenhush  v.  Leonard,  9  Paige,  334 ;  Slade  v.  Yan  VecMen, 
11  Paige,  21 ;  Barksdale  v.  Finney,  14  Gratt.  (Va.)  338  ;  Andrews 
V.  Hob  son,  23  Ala,  219  ;  Hubbell  v.  Medbury,  53  N.  Y.  (8  Sick.) 
98 ;  54  id.  683.  The  same  rules  are  applicable  to  cases  of  guard- 
ians and  wards,  and  other  relations  of  a  similar  character.  See 
1  Story's  Eq.  Juris.,  §  465. 

In  all  cases  where  it  is  necessary  that  an  accounting  should 
be  had  to  ascertain  the  rights  of  tenants  in  common  {Dardeh  v. 
Cowper,  7  Jones'  L.  [N.  C]  210;  Field y.  Craig,  8  Allen,  357; 
Leach  v.  Beattie,  33  Vt.  195),  joint-tenants,  partners  or  part- 
owners  of  ships  [McClellan  v.  Osborne,  51  Me.  118 ;  DycTcman 
V.  Valiente,  42  N.  Y.  [3  Hand]  549),  equity  has  jurisdiction. 
But  see  Pico  v.  Columbet,  12  Cal.  414.  Such  cases  involve 
peculiar  agencies  similar  to  those  of  bailiflFs,  or  managers  of 
property,  and  require  the  same  operative  power  of  discovery, 
and  the  same  interposition  of  equity.  1  Story's  Eq.  Juris.,  §  466; 
Strelly  v.  Wilson,  1  Vern.  297.  This  subject  will  be  further  dis- 
cussed under  subsequent  heads. 

§  6.  Apportionment.  Most  cases  of  apportionment  involve 
matters  of  account,  in  which  a  d/iscovery  is  essential  for  the  pur- 
poses of  justice ;  but  aside  from  this  ground  of  jurisdiction, 
there  are  other  distinct  grounds  upon  which  courts  of  equity 
will  exercise  jurisdiction  in  such  cases,  in  order  to  avoid  circuity 
and  multiplicity  of  actions.  As  it  regards  apportionment  in  its 
application  to  contracts  generally,  the  rule  of  the  common  law 
is,  that  an  entire  contract  is  not  apportionable,  unless  specially 
stipulated  by  the  parties,  and  courts  of  equity  have  very  gener- 
ally adopted  the  maxim,  cequitas  sequitur  legem.  See  1  Story's 
Eq.  Juris.,  §  470  ;  Granger  v.  Bassett,  98  Mass.  462 ;  Holmes  v. 
Taber,  9  Allen,  246.  Thus,  in  the  familiar  illustration,  where 
the  mate  of  a  ship  engaged  for  a  voyage  at  a  certain  sum  agreed 
upon  therefor,  and  died  during  the  voyage,  it  was  held,  that  at 


ACCOUNTING.  181 

law  there  could  be  no  apportionment  of  the  wages.  Cutter  v. 
Powell^  6  T.  R.  320.  Where,  however,  equitable  circumstances 
intervene,  courts  of  equity  will  interfere  to  grant  redress  ;  as,  in 
the  case  of  an  apprentice-fee  of  a  fixed  sum  being  given,  and 
the  master  afterward  becomes  bankrupt,  equity  will  interfere 
upon  the  ground  of  the  failure  of  the  contract  from  accident,  and 
decree  an  apportionment  of  the  premium  so  given.  Hale  v. 
TFe5&,  2  Bro.  Cli.  78.  So,  in  some  other  cases,  an  apportionment 
of  the  apprentice-fee  has  been  decreed.  See  1  Story's  Eq.  Juris., 
§  473.  But,  on  the  other  hand,  where  a  premium  has  been  paid 
and  the  apprenticeship  has  been  dissolved  by  request  of  the 
friends  of  the  apprentice,  but  without  any  default  in  the  master, 
and  without  an'y  agreement  for  a  return  of  any  part  of  the  pre- 
mium, there  a  court  of  equity  will  not  interfere.  No  equity 
attaches  itself  to  such  a  transaction,  nor  does  the  contract 
import  any  return.  Id.,  §  474;  Hirst  v.  Tolson,  13  Jurist,  596; 
Hale  V.  Webb,  2  Bro.  Ch.  78. 

Apportionment  of  rent  is  not  unfamiliar  to  the  administration 
of  the  law.  In  equity  it  is  apportionable  generally,  or  rather, 
each  beneficiary  is  required  to  contribute  according  to  the  benefit 
he  has  shared  in  the  use  of  the  premises.  See  Hall  v.  Stertenson, 
13  Abb.  N.  S.  (N.  Y.)  196,  202.  In  respect  to  their  appor- 
tionment in  certain  cases,  the  same  rule  is  not  applicable 
to  rents  service  and  rents  charge.  If  one  having  a  rent  ser- 
vice purchase  a  part  of  the  land  out  of  which  it  issues,  it 
extinguishes  the  rent  pro  rata,  and  leaves  it  good  for  the  bal- 
ance. So  if  he  release  a  part  of  his  rent,  the  residue  is  not  dis- 
charged. 2  Washb.  Real  Prop.  17;  Ingersoll  v.  Sergeant,  1 
Whart.  (Penn.)  337;  Bac.  Abr.,  Rent  M.  But  if  it  be  a  rent  charge, 
and  the  holder  of  the  rent  purchases  any  part  of  the  premises, 
the  rent  is  wholly  extinct.  So  if  he  releases  any  part  of  the  land 
which  is  charged,  the  balance  is  wholly  discharged,  and  the  rent 
will  not  be  apportioned.  2  Washb.  Real  Prop.  17.  But  there 
is  nothing  in  the  nature  of  a  rent  charge  which  absolutely  pre- 
vents its  being  apportioned  ;  for  it  is  well  settled  that  where  the 
division  of  the  land  charged,  into  several  portions,  is  by  the 
operation  of  law,  an  apportionment  will  take  place.  Thus,  if  a 
part  of  the  lands  charged  with  a  rent  descend  to  the  grantee  of 
the  rent,  it  being  the  act  of  the  law  and  not  of  the  grantee,  the 
rent  will  not  thereby  be  wholly  extinguished,  but  only  .pro 
rata.  Id.  17,  18  ;  1  Story's  Eq.  Juris.,  §  475,  a ;  Man  Rensselaer 
V.  Ghadwick,  22  N.  Y.  (8  Smith)  32 ;  S.  C,  24  Barb.  333 ;  Cruger 
V.  McLaury,  41  N.  Y.  (2  Hand)  219 ;  S.  C,  51  Barb.  642. 


182'  ACCOUNTING. 

Where  tenants  in  common  of  land  subject  to  a  rent  charge, upon 
a  partition,  interchange  conveyances  of  their  respective  parcels, 
subject,  in  terms,  to  the  claims  of  the  lessor,  an  apportionment 
of  the  rent  is  effected  if  the  lessor  concurs  in  the  arrangement. 
The  release  by  the  lessor,  in  such  a  case,  to  one  of  the  tenants 
of  the  parcel  partitioned  to  him,  only  extinguishes  the  rent  as  to 
the  parcel  so  released.  The  other  parcel  remains  liable  to  its  due 
proportion.  Van  Rensselaer  v.  Ghadwick^  22  N.  Y.  (8  Smith) 
32. 

In  every  lease  of  land,  the  lessor  is  so  far  bound,  by  implica- 
tion, for  the  title  and  enjoyment  by  the  lessee,  that  his  right  to 
the  rent  is  dependent  thereon  ;  and  if  the  tenant  is  evicted  from 
the  demised  premises,  the  rent  is  thereby  suspended.  Poston  v. 
Jones,  2  Ired.  Bq.  (N.  C.)  350.  So  if  the  lessor  be  evicted  of  a 
part  of  the  land  demised,  by  a  stranger  on  title  paramount,  it 
operates  as  a  suspension  of  the  rent  pro  tanto,  and  the  rent  is 
apportioned  and  payable  only  in  respect  of  the  residue.  lb. 

Upon  the  death  of  a  tenant  for  life,  in  the  middle  of  a  quarter, 
his  representative  is  not  entitled  to  an  apportionment  of  the  rent. 
Gee  V.  Gee,  2  Dev.  &  Bat.  Eq.  (N.  C.)  103.  As  to  the  apportion- 
ment of  rent  where  the  premises  out  of  vi^hich  the  rent  issued  are 
destroyed  by  fire  or  otherwise,  see  3  Kent's  Com.  466,  and  notes; 
Cutler  V.  Potts,  2  Hay.  (N.  C.)  26 ;  S.  C,  id.  60. 

A  rent  service  incident  to  a  reversion  will  not  be  lost  by  a 
grant  of  part  of  the  reversion,  but  will  be  apportioned.  And  the 
right  of  apportionment  attaches  the  instant  the  sale  is  made.  Lin- 
ton V.  Hart,  25  Penn.  St.  193;  Meed  v.  Ward,  22  id.  144.  A  rent 
payable  in  produce  and  services  is  apportionable.  Van  Rensse- 
laer V.  Gifford,  24  Barb.  349. 

§  7.  Contribution.  In  order  the  more  effectually  to  do  justice 
to  all  the  parties,  courts  of  equity  frequently  assume  jurisdic- 
tion over  matters  of  account  in  cases  of  contribution.  And  it  is 
held  that  the  jurisdiction  in  equity,  in  such  cases,  is  not  affected, 
because  a  remedy  now  exists  at  common  law.  Hickman  v.  Mc- 
Curdy,!  Z.  J.  Marsh.  (Ky^)  559;  Yeile  v.  Hoag,  24  Vt.  46;  Way- 
land  V.  Tucker,  4  Gratt.  (Va.)  268;  CoucTi  v.  Terry,  12  Ala.  225. 
The  doctrine  of  contribution  is  said  to  rest  on  the  principle  that 
when  the  parties  stand  in  equali  jure,  the  law  requires  equality 
which  is  equity,  and  one  of  them  shall  not  be  obliged  to  bear 
the  burden  in  ease  of  the  rest.  It  is  founded,  not  on  contract, 
but  on  the  principle  that  equality  of  burden  as  to  common  right 
is  equity.     And  the  obligation  to  contribute  arises  from  the 


ACCOUNTING.  183 

nature  of  the  relation  between  the  parties.  Campbell  v.  Mesier^ 
4  Johns.  Ch.  334 ;  S.  C,  6  id.  21;  Aspinwall  v.  SaccM,  57  N.  Y. 
(12  Sick.)  331,  335;  White  v.  Banks,  2\  Ala.  705;  Russell  v. 
Failer,  1  Ohio  St.  (N.  S.)  327.  If  the  liability  arise  ex  delicto 
there  is  no  right  to  contribution,  for  there  is  no  equity  between 
wrong-doers.  Adams'  Eq.  268;  Bartle  v.  JVutt,  4  Pet.  (U.S.)  184; 
Feck  V.  Mlis,  2  Johns.  Ch.  131 ;  Miller  v.  Fenton,  11  Paige,  18. 
Though  this  rule  is  held  to  be  applicable  only  where  the  parties, 
who  claim  contribution,  have  engaged  together  in  doing,  know- 
ingly or  wantonly,  a  wrong.  Moore  v.  Appleton,  26  Ala.  633 ; 
Armstrong  County  v.  Clarion  County,  QQ  Penn.  St.  218;  S.  C,  5 
Am.  R.  368;  Aches  on  v.  Miller,  2  Ohio  (N.  S.),  203. 

The  subject  of  contribution  may  be  illustrated  by  the  case, 
where  different  parcels  of  land  are  included  in  the  same  mort- 
gage, and  are  afterward  sold  to  different  purchasers,  each  holding 
in  fee  and  severalty  the  parcel  sold  to  himself.  Each  purchaser 
is  bound  to  contribute  to  the  discharge  of  the  common  burden  or 
charge,  in  proportion  to  the  value  which  his  parcel  bears  to  the 
whole  included  in  the  mortgage.  Stevens  v.  Cooper,  1  Johns.  Ch. 
425  ;  Cheeseborough  v.  Millard,  id.  409,  415  ;  Taylor  v.  Porter, 
7  Mass.  355.  To  ascertain  the  relative  values  of  each  is,  how- 
ever, a  matter  attended  with  much  difficulty  ;  and  without  a  re- 
sort to  a  court  of  equity  in  such  a  case,  the  most  serious  embar- 
rassments may  arise  in  fixing  the  proportion  of  each  purchaser, 
and  in  making  it  conclusive  upon  all  others.  See  1  Story's  Eq. 
Juris.,  §§  484,  485  ;  Hyde  v.  Tracy,  2  Day  (Conn.),  422;  Cutter  v. 
Emery,  37  N.  H.  567  ;  Ransom  v.  Keyes,  9  Cow.  128. 

Another  illustration  of  the  equity  for  contribution  is  found  in 
the  doctrine  of  general  anerage.  This,  in  the  sense  of  the  mari- 
time law,  means  a  general  contribution,  that  is  to  be  made  by 
all  parties  in  interest,  toward  a  loss  or  expense,  which  is  volun- 
tarily sustained  or  incurred  for  the  benefit  of  all.  The  principle 
upon  which  this  contribution  is  founded,  is  held  not  to  be  the 
result  of  contract,  but  has  its  origin  in  the  plain  dictates  of 
natural  law.  Abb.  on  Shipp.  342;  1  Story's  Eq.  Juris.,  §  490 ; 
Stirling  v.  Forrester,  3  Bligh,  590,  596 ;  Louismlle  Ins.  Co.  v. 
Bland,  9  Dana  (Ky.),  147  ;  Nimic  v.  Holmes,  25  Penn.  St.  371. 

The  circumstances  under  which  this  equity  arises  are  where  a 
ship  and  cargo  are  in  imminent  peril,  and  a  portion  is  intention- 
ally sacrificed  for  the  security  of  the  rest ;  as,  where  goods  are 
thrown  overboard,  or  a  portion  of  the  ship' s  rigging  cut  away, 
to  lighten  and  save  the  ship,  or  the  ship  itself  is  intentionally 


184  ACCOUNTING. 

stranded,  to  save  her  cargo  from  a  tempest  or  an  enemy,  or  a 
part  of  the  cargo  is  delivered  up  by  way  of  ransom,  or  is  sold 
for  the  necessity  of  the  ship.  In  all  these  cases  the  impending 
danger  is  common  to  all,  and  the  means  by  which  it  is  averted 
ought  to  be  a  common  burden.  If,  therefore,  the  ship  and  tlie 
residue  of  the  cargo  are  preserved  by  the  sacrifice,  the  parties 
interested  in  the  ship,  her  freight,  and  the  merchandise  on  board, 
must  make  good  ratable  shares  of  the  loss,  proportioned  to  the 
value  which  their  own  goods  and  the  goods  sacrificed  would 
have  borne,  after  deducting  freight,  had  they  safely  reached  the 
port  of  discharge.  If,  on  the  contrary,  the  sacrifice  is  not  inten- 
tionally made,  but  is  damage  incurred  by  violence  or  stress  of 
weather,  or  if  it  prove  unavailing,  or  be  made  not  to  save  the 
cargo,  but  to  save  the  lives  and  liberty  of  the  crew,  the  principle 
of  contribution  does  not  apply,  and  the  loss  must  remain  where 
it  originally  falls.  Adams'  Eq.  271 ;  Sims  v.  Gurney^  4  Binn. 
(Penn.)  524 ;  Williams  v.  Suffolk  Ins.  Co.,  3  Sumn.  51 3 ;  Crockett 
V.  Dodge.,  3  Fairf.  (Me.)  190.  The  rates  of  contribution  are  gen- 
erally settled  by  arbitration,  but  the  parties  cannot  be  compelled 
to  refer,  and  may  have  recourse  to  an  action  at  law  or  a  suit  in 
equity.  Adams'  Eq.  271 ;  Sturgess  v.  Cary,  2  Curtis  (C.  C),  59 ; 
Gillett  V.  Ellis,  11  111.  579.  A  court  of  equity  affords  a  safe,  con- 
venient, and  expeditious  remedy ;  and  it  is  accordingly  the  cus- 
tomary mode  of  remedy  in  all  cases,  where  a  controversy  arises, 
and  a  court  of  equity  exists  in  the  place,  capable  of  administer- 
ing the  remedy.  1  Story's  Eq.  Juris.,  §  491 ;  Merithew  v.  Samp- 
son, 4  Allen,  192  ;  Hallett  v.  Bousefield,  18  Ves.  190,  196. 

The  beneficial  effects  of  equity  jurisdiction  over  matters  of 
account  may  also  be  seen  in  cases  of  contribution  between  sure- 
ties. Such  contribution  may,  indeed,  be  enforced  at  law,  as  well 
as  in  equity.  See  Harris  v.  Ferguson,  2  Bailey,  397 ;  Norton  v. 
Coons,  3  Denio,  130 ;  Rindge  v.  Baker,  57  N.  Y.  (12  Sick.)  209, 
215;  S.  C,  15  Am.  R.  475.  Bat  the  jurisdiction  now  assumed  in 
courts  of  law,  in  no  way  affects  that  originally  and  intrinsically 
belonging  to  equity,  and  there  are  many  cases  in  which  the  relief 
is  more  complete  and  effectual  in  equity  than  it  can  be  at  law. 
See  Edsell  v.  Briggs,  20  Mich.  429  ;  1  Story's  Eq.  Juris.,  §  496. 

The  right  of  contribution  arises  between  sureties  where  one 
has  been  called  on  to  make  good  the  principal' s  default,  and  has 
paid  more  than  his  share  of  the  entire  liability.  Adams'  Eq.  269 ; 
Pinkston  v.  Taliaferro,  9  Ala.  547 ;  Mitchell  v.  Sprout,  5  J.  J. 
Marsh.  (Ky.)  264.    And  the  right  exists  notwithstanding  the  sev- 


ACCOUNTING.  185 

eral  sureties  sign  without  any  communication  with,  each  other. 
Norton  v.  Coons,  6  N.  Y.  (2  Seld.)  33  ;  S.  C,  3  Denio,  130 ;  Chaf- 
fee V.  Jones,  19  Pick.  260, 264.  But  he  can  only  call  for  contribu- 
tion when  he  has  paid  more  than  his  proportion  of  the  debt,  and 
then  for  no  more  than  the  excess.  Rutherford  v.  Branch  BanJc, 
14  Ala.  92 ;  L^jtle  v.  Pope,  11  B.  Monr.  (Ky.)  309  ;  Fletcher  v. 
Grover,  11  N.  H.  368,  373-4.  See  Taylor  v.  Morrison,  26  Ala.  728; 
llsley  V.  Jeweit,  2  Mete.  168.  So,  a  surety,  who  has  paid  the 
whole  debt,  must  show  the  insolvency  of  the  principal,  to  entitle 
him  to  contribution  against  his  co-surety.  Allen  v.  Wood,  3 
Ired.  Eq.  (N.  C.)  386 ;  Daniel  v.  Ballard,  2  Dana  (Ky.),  296 ; 
Fear  son  v.  Duckham,  3  Litt.  (Ky.)  385.  Or  must  show  that  he 
has  used  due  diligence,  without  effect,  to  obtain  reimbursement. 
McCormack  v.  Ohannon,  3  Munf.  (Ya.)  484.  And  a  surety  who 
has  neglected  to  interpose  a  legal  defense,  as,  for  instance,  the 
statute  of  limitations,  is  not  entitled  to  claim  contribution  from 
the  rest.  Fordham  v.  Wallis,  17  Jurist,  228.  But  where  the 
estate  of  a  deceased  surety  of  a  principal  debtor  was  discharged 
from  liability  to  the  creditor,  through  his  negligence,  by  opera- 
tion of  the  statute  of  limitations,  and  a  co-surety  afterward  paid 
the  debt,  it  was  held  that  the  estate  was  liable  to  contribute  to 
such  co-surety,  notwithstanding  it  was  released  from  direct  lia- 
bility to  the  creditor.  Cainp  v.  Bostwick,  20  Ohio  St.  337  ;  S.  C, 
5  Am.  R.  669.  The  doctrine  of  contribution  has  its  origin  in  the 
relation  of  co-sureties  or  other  joint  promisors  in  the  same  de- 
gree of  obligation.  It  is  not  founded  upon  the  contract  of  surety- 
ship, but  is  an  equity  which  springs  up  at  the  time  the  relation 
of  co-sureties  is.  entered  into,  and  ripens  into  a  cause  of  action 
where  one  surety  pays  more  than  his  proportion  of  the  debt. 
From  this  relation  the  common  law  implies  a  promise  to  con- 
tribute in  case  of  unequal  payments  by  co-sureties.  lb.  Fussell 
V.  Failor,  1  Ohio  St.  327.  But  equity  resorts  to  no  such  fiction. 
It  equalizes  burdens  and  recognizes  and  enforces  the  reasonable 
expectations  of  co-sureties,  because  it  is  just  and  right  in  good 
morals,  and  not  because  of  any  supposed  promise  between  them. 
1  Lead.  Cas.  Eq.  105;  Aspinwall  v.  Sacchi,  57  N.  Y.  (12  Sick.) 
331,  336.  This  equity  having  once  arisen  between  co-sureties, 
this  reasonable  expectation  that  each  will  bear  his  share  of  the 
burden  is,  as  it  were,  a  vested  right  in  each,  and  remains  for  his 
protection  until  he  is  released  from  all  his  liability  in  excess  of 
his  ratable  share  of  the  burden.  Neither  the  creditor,  the  prin- 
cipal, the  statute  of  limitations,  nor  the  death  of  a  party,  can 

Vol.  I.— 24 


186  ACCOUNTING. 

take  it  away.  Camp  v.  BostwicTc,  20  Ohio  St.  337 ;  S.  C,  5  Am. 
R.  669  ;  Howe  v.  Ward,  4  Greenl.  (Me.)  195 ;  Baehelder  v.  Flslce, 
17  Mass.  464 ;  Boardman  v.  Paige,  11  N.  H.  431 ;  Aspinwall  y. 
SaccM,  57  N.  Y.  (12  Sick.)  337,  338. 

In  some  of  tlie  States  of  the  Union,  courts  of  law  now  follow 
the  rule  adopted  in  courts  of  equity  in  apportioning  the  share  of 
an  insolvent  surety  upon  those  who  remain  solvent.  See  Hen- 
derson V.  MeDuffee,  5  N.  H.  38 ;  Mills  v.  Hyde,  19  Vt.  69 ;  Allien 
V.  Peay,  5  Strobh.  (S.  C.)  15  ;  Jones  v.  Blanton,  6  Ired.  Eq.  (N. 
C.)  116 ;  1  Story's  Eq.  Juris.,  §  496,  a.  That  equity,  where  the  prin- 
cipal is  insolvent,  will  restrain  a  surety  from  fraudulently  strip- 
ping himself  of  his  property,  so  as  to  throw  the  burden  of  the 
debt  on  his  co-surety.     See  Bowen  v.  Hoskins,  45  Miss.  183. 

There  are  many  other  cases  of  contribution,  in  which  courts  of 
equity  exercise  jurisdiction  for  the  purposes  of  justice,  but  a 
discussion  of  them  will  be  found  under  other  and  appropriate 
heads.     For  a  general  view  of  the  subject,  see  Contribution. 

§  8.  Liens.  Matters  of  account,  constituting  ground  for  the 
interference  of  courts  of  equity,  also  arise  out  of  the  subject  of 
liens.  And  in  many  cases  of  this  kind,  a  resort  to  a  court  of 
equity,  to  ascertain  and  adjust  the  account,  would  seem  to  be 
absolutely  indispensable  for  the  purposes  of  justice.  See  Patty 
V.  Pease,  8  Paige,  277;  Skeel  v.  SpraTcer,  id.  182 ;  see,  also,  title 
Liens. 

§  9.  Rents  and  profits.  Equity  has  jurisdiction  in  many  cases 
of  account,  pertaining  to  rents  and  %>Tojits,  not  only  when  they 
arise  from  privity  of  contract,  but  also  when  they  arise 
from  adverse  claims  and  titles,  asserted  by  different  persons. 
See  Bac.  Abr.,  Accompt,  B.  Accounts  between  landlord  and 
tenant  frequently  extend  over  a  long  period  of  time ;  and  in 
cases  of  this  kind,  where  there  are  controverted  claims,  a  resort 
to  courts  of  equity  often  becomes  necessary  in  order  to  obtain  a 
due  adjustment  of  the  respective  rights  of  each  party.  See  1 
Story's  Eq.  Juris.,  §  508;  Hodges  v.  Pingree,  10  Gray,  14.  In  the 
ordinary  case  of  mesne  profits,  where  there  is  a  clear  remedy  at 
law,  courts  of  equity  will  not  interfere,  unless  there  are  some 
special  circumstances,  rendering  interference  necessary.  But,  if 
such  circumstances  exist,  equity  will  interfere,  not  only  in  cases 
arising  under  contract,  but  in  those  arising  under  torts  also  ;  as, 
where  a  man  intrudes  upon  an  infant's  lands,  and  takes  the 
profits,  he  may  be  compelled  to  account  for  them,  and  will  be 
treated  as  a  guardian  or  trustee  for  the  infant.     Dormer  v.  For- 


ACCOUNTING.  187 

tescue,  3  Atk.  129  ;  Carey  v.  Burtie,  2  Yern.  342.  So,  if  there  is 
a  trust  estate,  and  the  cestui  que  trust  comes  into  equity  upon 
his  title  to  recover  the  estate,  he  will  be  decreed  to  have  the 
further  relief  of  an  account  of  the  rents  and  profits.  Dormer  v. 
Fortescue,  3  Atk.  129 ;  and  see  Curtis  v.  Curtis,  2  Bro.  Ch. 
620  ;  1  Story's  Eq.  Juris.,  §  512. 

It  has  been  held,  that  where  matters  of  account  affecting  heirs 
relate  entirely  to  the  rents,  issues,  and  profits  of  lands  in  contro- 
versy, and  would  be  included  in  an  adjustment  of  the  rights  to 
the  land,  there  is  no  sufficient  reason  for  taking  them  into  equity 
for  settlement.     Claussen  v.  Lafranz,  4  Greene  (Iowa),  224. 

§  10.  Waste.  It  would  seem  to  be  the  established  doctrine, 
that  to  maintain  jurisdiction  in  equity  for  an  account  in  cases  of 
waste,  there  should  be  a  prayer  for  an  injunction  to  prevent 
future  waste.  See  Grierson  v.  Eyre,  9  Yes.  89  ;  Pulteney  v. 
Warren,  6  id.  89  ;  Phillips  v.  Allen,  5  Allen,  85.  Though  the 
better  doctrine  probably  is,  "  that  where  discovery  is  sought,  and 
is  obtained,  there,  also,  to  prevent  multiplicity  of  suits,  an 
account  ought  to  be  decreed  without  the  additional  ingredient  of 
an  injunction  to  stay  future  waste."  See  1  Story's  Eq.  Juris., 
§  518  ;  Watson  v.  Hunter,  5  Johns.  Ch.  169  ;  Eden  on  Injunct. 
206  ;  Kerr  on  Injunct.  284.  Mines  and  collieries,  being  a  species 
of  trade,  an  account  of  profits  will  in  all  cases  be  granted  with- 
out reference  to  the  question  whether  or  not  an  injunction  will 
lie  ;  or  whether  or  not  there  is  a  remedy  at  law.  Id.  285. 

ARTICLE  11. 

WHEN-   NO    ACTION   CAN   BE    MAINTAINED. 

Section  1.  In  general.  It  may  be  stated  generally,  that  courts 
of  equity  decline  jurisdiction  in  matters  of  account :  1.  Where  the 
demands  are  all  on  one  side,  and  no  discovery  is  claimed  or  nec- 
essary ;  2.  Where  on  one  side  there  are  demands,  and  on  the 
other  mere  payments  or  set-oflEs,  and  no  discovery  is  sought  or 
required.  Lafever  v.  Bellmyer,  5  W.  Ya.  33  ;  Gloninger  v.  Haz- 
ard, 42  Penn.  St.  389  ;  McMartin  v.  Bingham,  27  Iowa,  234 ; 
Haywood  v.  Hutchins,  Q^  N.  C.  574.  In  these  cases,  there  is 
not  only  a  complete  remedy  at  law,  but  there  is  nothing  requir- 
ing the  peculiar  aid  of  equity,  to  ascertain  or  adjust  the  claim. 
See  Id.;  Foster  y.  Spencer,  2  Johns.  Ch.  171;  Durant  v.  Ein- 
stein, 35  How.  223,  241;  S.  C,  5  Rob.  423. 


188  ACCOUNTING. 

It  has  been  held,  that  a  court  of  equity  will  not  entertain  a  bill 
for  an  account,  even  between  partners,  when  the  items,  both  of 
credit  and  debit,  arise  from  a  special  contract,  and  are  few  and  for 
fixed  and  definite  sums  and  easily  ascertained  by  the  verdict  of 
a  jury.  Lesley  v.  Mosson,  39  Miss.  368.  So,  the  mere  relation 
of  creditor  of  the  defendant  is  not,  of  itself,  suflicient  to  entitle 
the  plaintiff  to  an  accounting.  Salter  v.  Ham,  31  N.  Y.  (4  Tiff.) 
321.  For  other  instances  in  which  jurisdiction  in  equity  over 
accounts  has  been  denied  or  declined,  upon  the  ground  that 
under  the  peculiar  circumstances  equity  ought  not  to  interfere, 
see  Southgate  v.  Montgomery^  1  Paige,  41  ;  Morris  v.  Mowait, 
4  id.  142 ;  Fowle  v.  Lawrason,  5  Pet.  (U.  S.)  494 ;  Poage  v. 
Wilson,  2  Leigh  (Ya.),  490 ;  Olioer  v.  Palmer,  11  Grill.  &  J. 
(Md.)  426. 

§  2.  Defenses  to  action.  In  some  cases  the  right  of  a  party  to 
sue  in  equity  for  an  accounting,  though  originally  good,  may  be 
impaired  or  defeated ;  as,  by  long-continued  delay  to  prosecute 
the  suit.  Boiling  v.  Boiling,  5  Munf.  (Ya.)  334 ;  Mooers  v. 
White,  6  Johns.  Ch.  360 ;  or  by  the  pendency  of  another  suit 
covering  the  same  matters.  Boyd  v.  HawMns,  2  Dev.  (N.  C.) 
195 ;  Hertell  v.  VanBuren,  3  Edw.  Ch.  20 ;  or  by  the  death  of  a 
party  to  the  transactions  in  question.  Bertine  v.  Varian,  1  Edw. 
Ch.  343 ;  Randolph  v.  Randolph,  2  Call  (Ya.),  537 ;  or  by  a 
previous  voluntary  accounting.  Id.;  Heartt  v.  Corning,  3  Paige, 
566 ;  Weed  v.  Small,  7  id.  573.  So,  where  transactions  have 
become  obscure  and  entangled  by  delay  and  time,  a  court  of 
equity  will  not  readily  decree  an  account.  There  is,  however,  no 
precise  rule  on  this  subject ;  each  case  depending  upon  the  exer- 
cise of  a  sound  discretion  on  the  circumstances.  Rayner  v. 
Pearsall,  3  Johns.  Ch.  578. 


ACCOUNTS  AND  ACCOUNT  STATED.  189 


CHAPTER  Y. 

OF   ACTIONS    KELATING    TO    ACCOUNTS,    OR    TO    AN 
ACCOUNT  STATED. 


ARTICLE  I. 

ACTIONS  UPON  OR  RELATING  TO  ACCOUNTS. 

Section  1 .  What  is  a  matter  of  account.  Matters  of  account 
properly  chargeable,  and  for  the  recovery  of  which  an  action  will 
lie,  include  personal  property  sold  and  delivered,  services  per- 
formed, and  materials  found  and  provided,  and  the  use  of  such 
property  hired  and  returned.  See,  generally,  Merrill  v.  Ithaca 
cfe  Owego  R.  R.  Co.,  16  Wend.  586  ;  Terr  ill  v.  Beeclier,  9  Conn. 
344  ;  Clarfc  v.  Savage,  20  id.  258 ;  Fry  v.  Slyfield,  3  Vt.  246 ; 
Austin  V.  Wheeler,  16  id.  95 ;  Shoemaker  v.  Kellogg,  11  Penn. 
St.  310.  Lottery  tickets  have  been  held  properly  chargeable  in 
a  book  account  in  Delaware.  Rogers  v.  Bailey,  4  Harr.  256  ; 
Gregory  n.  Bailey,  id.;  and  see,  also,  May  v.  Brownell,  3  Vt. 
463.  And  where  parties  have  mutual  dealings,  and  rent  from 
one  to  another  becomes  a  subject  of  account  between  them,  by 
mutual  understanding  and  arrangement,  it  is  recoverable  in  an 
action  on  acccount.     Nedmdek  v.  Meyer,  46  Mo.  600. 

On  this  subject  the  "book  debt"  law  of  the  various  States 
should  be  consulted. 

§  2.  What  is  not  a  matter  of  account.  Charges  in  a  book, 
which  are  not  in  the  nature  of  liquidated  sums,  or  prices  or  val- 
ues, but  damages  which  can  be  rendered  certain  only  by  conven- 
tion or  judicial  decision,  are  held  not  matters  of  book  account. 
Swing  v.  Sparks,  7  N.  J.  L.  (2  Halst)  59.  See  Stow  v.  Black,  37 
Vt.  25;  Scott  V.  Lance,  21  id.  507.  Nor  are  special  or  executory 
contracts,  especially  concerning  lands,  bonds,  bills,  notes,  etc., 
proper  matters  of  book  account.  Wilson  v.  Wilson,  6  N.  J.  L. 
(1  Halst.)  95.  See  Stevens  v.  Damon,  29  Vt.  521.  So,  it  has  been 
held,  that  a  charge  of  a  specified  sum,  as  difference  on  exchange  of 
chattels,  cannot  be  stated  as  a  matter  of  book  account,  but  should 
be  specially  set  forth.  Anonymous,  16  N.  J.  L.  (1  Harr.)  395. 
And,  among  other  things,  not  regarded  as  matters  of  account, 
may  be  mentioned  compensation  for  the  use  and  occupation  of 


190  ACCOUNTS  AND  ACCOUNT  STATED. 

land.  Case  v.  Berry ^  3  Vt.  332 ;  a  balance  due  on  a  promissory 
note,  Stevens  v.  Damon,  29  id.  521 ;  damages  for  a  tort,  Peach 
V.  3fllls,  14  id.  371 ;  Brinsmaid  v.  Mayo,  9  id.  31 ;  or  for  the 
breach  of  a  special  contract  remaining  unexecuted  but  in  part, 
Smith  V.  Smith,  14  id.  440. 

§  3.  Books  of  account,  how  kept.  The  mere  form  in  which  a 
charge  is  made  upon  or  in  books  of  account  is  not  material  in 
determining  the  right  to  recover  therefor.  Scott  v.  Lance,  21  Yt. 
507.  The  law  does  not  require  that  books  of  account  should  be 
kept  in  strict  accordance  with  the  most  approved  systems  of 
book-keeping.  They  may  be  kept  in  the  form  of  an  ordinary 
journal  or  day-book,  or  in  ledger  form,  where  the  account  of 
each  man  dealing  with  the  party  is  kept  by  itself.  Prince  v. 
Smith,  4  Mass.  55  ;  Slade  v.  Teasdale,  2  Bay.  (S.  C.)  173.  So, 
almost  any  series  of  figures,  abbreviations  and  words,  which  can 
be  explained  into  a  signification,  will  do  for  particular  charges, 
if  conformable  to  the  party' s  ordinary  course  of  making  his  en- 
tries, the  language  he  speaks,  his  degree  of  education,  and  the 
nature  of  his  business.  Rowland  v.  Burton,  2  Harr.  (Del.)  288; 
Stroud  V.  Tllton,  4  Abb.  Ct.  App.  (N.  Y.)  324;  S.  C,  3  Keyes, 
139  ;  Merrill  v.  Ithaca  &  Owego  R.  R.  Co.,  16  Wend.  595.  But 
as  books  of  account  are  intended  to  keep  a  correct  statement  of 
the  items  of  an  account,  with  the  date,  quantity,  price,  or  value 
of  each  item,  it  is  a  general  rule,  that  entries  are  improper  when 
made  in  gross  or  by  the  lump.  Such  is  a  charge  by  a  mechanic 
for  "190  days'  work."  Lynch^  s  AdwCr  v.  Petrie,  1  Nott  &  M. 
(S.  C.)  130.  Or  a  charge  by  a  physician,  of  thirteen  dollars,  for 
medecine  and  attendance  in  curing  the  whooping  cough.  Hughes 
v.  Hampton,  2  Const.  Rep.  745.  See  2  Wait's  Law  &  Pr,  449.  A 
physician  may,  however,  properly  include  in  one  charge  the 
items  of  medicine  furnished,  as  well  as  the  compensation  for  his 
visit,  on  any  single  occasion.  But  a  merchant's  bill  must  be 
made  out  differently.  He  cannot  charge  for  a  bill  of  goods  sold 
in  gross,  but  must  give  the  date,  articles,  quantity,  value,  or 
other  specification  requisite  to  an  accurate  account.  lb. 

§  4.  Books,  how  proved.  The  rules  in  the  several  States  in  re- 
gard to  the  proof  of  books  of  account  are  far  from  being  uniform. 
Generally,  before  the  books  of  the  party  can  be  admitted  in  evi- 
dence, they  are  to  be  submitted  to  the  inspection  of  the  court, 
and  if  they  do  not  appear  to  be  a  register  of  the  daily  business 
of  the  party,  and  to  have  been  honestly  and  fairly  kept,  they  are 
excluded.    Churchman  v.  Smith,  6  Whart.  (Penn.)  106'.    If  the 


ACCOUNTS  AND  ACCOUNT  STATED.  191 

books  appear  free  from  fraudulent  practices,  and  proper  to  be 
laid  before  the  jury,  then,  in  many  of  the  States,  the  party  him- 
self is  required  to  make  oath,  in  open  court,  that  they  are  the 
books  in  which  the  accounts  of  his  ordinary  business  transactions 
are  usually  kept.  See  Taylor  v.  Tucker,  1  Kelly,  233;  Hale  v. 
Ard,  48  Penn.  St.  22  ;  Funk  v.  Ely,  45  id.  444  ;  Frye  v.  Barker, 
2  Pick.  65  ;  Basseit  v.  Spofford,  11  N.  H.  167  ;  Rowland  v.  Bur- 
ton, 2  Harr.  (Del.)  288 ;  Fltzglhhon  v.  Kenny,  3  id.  317  ;  Kitclien 
V.  Tyson,  2  Murph.  (N.  C.)  314  ;  Foster  v.  Slnkler,  1  Bay.(S.  C.) 
40 ;  Nicker  son  v.  Morin,  3  Wis.  243.  In  New  York  the  rule  is, 
that  to  render  books  of  account  competent  evidence,  the  party 
must  prove  that  during  the  period  that  the  charges  were  made, 
he  had  no  clerk ;  that  some  of  the  articles  or  work  were  deliv- 
ered or  performed  ;  that  the  books  are  the  account  books  of  the 
party,  and  that  he  keeps  correct  accounts.  VosburgJi  v.  Thayer, 
12  Johns.  461  ;  Tomlinson  v.  Borst,  30  Barb.  42 ;  Stroud  v. 
Tllton,  3  Keyes,  139  ;  S.  C,  4  Abb.  Ct.  App.  326.  And  it  now 
seems  to  be  the  settled  law  of  the  State,  that  parties  may  intro- 
duce books  of  account  in  evidence,  and  a  party  may  supply,  if 
he  can,  the  preliminary  proof  of  the  correctness  of  the  books  by 
his  own  oath,  whenever  it  is  made  to  appear  that  the  party  had 
no  clerk  ;  or,  if  he  had  one,  that  the  clerk  was  dead.  Burke  v. 
Wolfe,  6  Jones  &  Spen.  (N.  Y.)  263. 

For  a  full  discussion  of  this  subject,  which  more  appropriately 
falls  under  the  head  of  Evidence,  see  2  Wait's  Law  &  Pr.  436 
et  seq. 

ARTICLE  IL 

ACTIONS   UPON"   OR  RELATING  TO   AN"   ACCOUNT  STATED. 

Section  1.  An  account  stated.  In  general.  An  open  account 
is  defined  to  be  one  in  which  some  item  of  the  contract  is  not  set- 
tled by  the  parties,  whether  the  account  consists  of  one  item  or 
of  many.  Slieppard  v.  Wilkins,  1  Ala.  62  ;  Goodwin  v.  Harrison, 
6  Ala.  438.  VtMi  2i  stated  accou7it  \s  2in  agreement  between  the 
parties  to  an  account,  that  all  the  items  are  true.  Stebbifis  v. 
Niles,  25  Miss.  267.  To  make  a  stated  account  requires  two 
parties,  the  debtor  and  the  creditor.  There  must  be  a  mutual 
agreement  between  them  as  to  the  allowance  and  disallowance  of 
the  respective  claims,  and  as  to  the  balance  as  it  is  struck  upon 
the  final  adjustment  of  the  whole  account  and  demands  of  both 
sides.     Their  minds  must  meet  as  in  making  other  agreements. 


192  ACCOUNTS  AND  ACCOUNT  STATED. 

and  tliey  must  both  assent  to  the  account  and  the  balance  as 
correct.  Stenton  v.  Jerome,  54  N.  Y.  (9  Sick.)  480 ;  LocJcwood 
V.  Thome,  12  N.  Y.  (1  Kern.)  170 ;  Kock  v.  Bonitz,  4  Daly  (N. 
Y.),  117.  That  the  stating  of  an  account  is  in  the  nature  of  a  new- 
promise.  See  Holmes  v.  7>'  Camp,  1  Johns.  34  ;  Montgomery  v. 
Ix>es,  17  Johns.  38 ;  Hoyt  v.  Wilkinson,  10  Pick.  31  ;  White  v. 
Camphell,  25  Mich.  463.  The  balance  of  a  stated  account  is 
principal,  and  it  cannot  be  re-examined  to  ascertain  the  items  or 
their  character.    McClelland  v.  West,  70  Penn.  St.  183. 

§  2.  Rendering  an  account.  An  account  rendered  is  an  admis- 
sion, and  prima  facie  evidence  against  the  party  making  it,  but 
does  not  estop  him  from  showing  the  truth.  It  is  still  open  to 
explanation  for  any  omissions  or  mistakes.  Champion  v.  Joslyn, 
44  N.  Y.  (5  Hand)  653;  Schettler  v.  Smith,  34  N.  Y.  Supr.  Ct.  17; 
and  see  Williams  v.  Glenny,  16  N.  Y.  (2  Smith)  389 ;  Daniels 
V.  Wilber,  60  111.  526 ;  Nicholson  v.  Pelanne,  14  La.  Ann.  508 ; 
Beehe  v.  Rolert,  12  Wend.  413  ;  Smith  v.  Tucker,  2  E.  D.  Smith 
(N.  Y.),  193.  So  evidence  of  the  reason  why  certain  items  do 
not  appear  in  an  account  rendered  is  held  to  be  immaterial.  The 
party  may  show  the  fact  that  such  items  exist,  notwithstanding 
their  omission  from  his  account,  but  is  confined  to  his  facts,  and 
his  reasons  or  motives  for  the  omission  are  held  to  be  of  no  im^ 
portance.     Champion  v.  Joslyn,  44  N.  Y.  (5  Hand)  653. 

§  3.  Mutual  agreements.  The  conversion  of  an  open  account 
into  an  account  stated  is  an  operation  by  which  the  parties  assent 
to  a  sum  as  the  correct  balance  due  from  one  to  the  other  ;  and 
whether  this  operation  has  been  performed  or  not,  in  any  instance, 
must  depend  upon  the  facts.  That  it  has  taken  place,  may  ap- 
pear by  evidence  of  an  express  understanding,  or  of  words  and 
acts,  and  the  necessary  and  proper  inferences  from  them.  White 
V.  Campbell,  25  Mich.  463.  But  in  all  cases  there  must  be  proof, 
in  some  form,  of  an  express  or  implied  assent  to  the  account 
rendered  by  one  party  to  the  other,  before  the  latter  can  be  held 
to  be  so  far  concluded  that  he  can  impeach  it  only  for  fraud  or 
mistake.  Stenton  v.  Jerome,  54  N.  Y.  (9  Sick.)  480 ;  Lockwood 
V.  Thome,  11  N.  Y.  (1  Kern.)  170 ;  S.  C,  18  N.  Y.  (4  Smith)  288, 
290.  No  account  can  be  legally  stated  by  persons  who  are  not 
competent  to  make  a  valid  contract.  Holmes  v.  D^  Camp,  1 
Johns.  34.  And  for  this  reason,  an  infant  is  not  bound  by  an 
account  stated,  even  though  he  expressly  agrees  to  it.  Trueman 
V.  Hurst,  1  Term  R.  40.  It  is  not  necessary  that  an  account 
should  be  signed  by  the  parties  to  make  it  a  stated  account. 


ACCOUNTS  AND  ACCOUNT  STATED.  193 

Bruen  v.  Hone^  2  Barb.  586  ;  Lockwood  v.  Thome,  11  N.  Y.  (1 
Kern.)  170,  173  ;  Brown  v.  Vandyke,  8  N.  J.  Eq.  (4  Halst.)  795. 
So,  to  constitute  an  account  stated,  it  is  not  necessary  that  there 
should  be  mutual  or  cross  demands.  They  may  be  all  on  one 
side,  or  consist  of  charges  and  the  acknowledgment  of  payment. 
The  simple  rendering  of  the  items  of  an  account  between  the 
parties,  and  the  striking  of  a  balance,  or  agreeing  upon  the 
amount  due,  is  sufficient ;  and  upon  such  a  state  of  fact  an  action 
on  an  account  stated  may  be  maintained.  KocJc  v.  Bonitz,  4 
Daly  (N.  Y.),  117 ;  Knowles  v.  MleJiel,  13  East,  249;  Hutchinson 
V.  Market  Bank  of  Troy,  48  Barb.  302  ;  Cobb  v.  Arundell,  26 
Wis.  553. 

§  4.  Admissions,  etc.  When  a  defendant  acknowledges  his  in 
debtedness  for  a  specific  sum,  being  a  balance  of  an  account,  the 
court  is  at  liberty  to  treat  it  as  an  account  stated,  and  give  judg- 
ment for  such  balance.  May  v.  Kloss,  44  Mo.  300.  Otherwise, 
if  the  acknowledgment  is  qualified  or  conditional  {Enans  v.  Ver- 
ity, Ryan  &  M.  239) ;  or,  the  amount  of  the  indebtedness  is  not 
specified.  Lane  v.  Hill,  18  Ad.  &  Ell.  (N.  S.)  252  ;  Kirton  v. 
Wood,  1  Mood  &  Rob.  253.  So,  merely  giving  a  note  for  the 
balance  is  not  necessarily  an  admission  of  the  correctness  of  an 
account  {Morton  v.  Rogers,  14  Wend.  576) ;  though  it  is  held  to 
be  prima  facie  evidence  of  a  settlement  of  accounts  between  the 
parties.  Butcher  v.  Porter,  63  Barb.  15 ;  Treadwell  v.  Abra- 
hams, 15  How.  (N.  Y.)  219.  See  Stiles  v.  Brown,  1  Gill.  (Md.) 
350.  And  a  party  signing  his  name  to  an  account  current  is  not 
conclusive  evidence  of  his  owing  the  amount  therein  stated. 
The  implied  admission  in  such  case  may  be  rebutted  by  compe- 
tent proof,  as  fraud,  error  or  mistake.  Miller  v.  Probst,  Add. 
(Penn.)  334  ;  Kirkpatrick  v.  Turnbull,  id.  260  ;  Nichols  v.  Alsop, 
6  Conn.  447  ;  Perkins  v.  Hart,  11  Wheat.  (U.  S.)  237.  But  pay- 
ment of  the  balance,  shown  by  an  account  to  be  due  to  the  party 
receiving  it,  has  been  held  an  admission  of  the  correctness  of 
the  account,  though  not  absolutely  conclusive.  Bruen  v.  Hone, 
2  Barb.  586 ;  Lockwood  v.  Thome,  11  N.  Y.  (1  Kern.)  170  ;  revers- 
ing S,  C,  24  Barb.  391.  As  to  express  admissions,  sufficient  to 
bind  the  party,  see  Thurmond  v.  Sanders,  21  Ark.  255  ;  Owen  v. 
Boerum,  23  Barb.  187. 

§  5.  No  objection  made.  If  one  party  presents  his  account  to 
the  other,  and  the  latter  makes  no  objection,  it  may  well  be  in- 
ferred that  he  is  satisfied  with  and  assents  to  it  as  correct.  So, 
if  an  account  be  made  up  and  transmitted  by  one  party  to  the 

Vol.  I.  — 25 


194  ACCOUNTS  AND  ACCOUNT  STATED. 

other  by  mail,  and  tlie  latter  keeps  it  for  some  considerable  time 
without  making  any  objection,  he  is  held  to  have  acquiesced  in 
it.  Stejiton  v.  Jerome,  54  N.  Y.  (9  Sick.)  480.  A  very  general 
statement  of  the  rule  is,  that  when  a  party  indebted  upon  an 
account  receives  and  retains  it  beyond  such  time  as  is  reasonable 
under  the  circumstances  and  according  to  the  usage  of  the  busi- 
ness, for  examining  and  returning  it,  without  communicating 
any  objections,  he  is  considered  to  acquiesce  in  its  correctness, 
and  he  becomes  bound  by  it  as  an  account  stated.  Signature  to 
the  account,  or  express  admission,  is  not  necessary.  Case  v. 
ITotchkiss,  1  Abb.  Ct.  App.  (N.  Y.)  324 ;  Townley  v.  Denison, 
45  Barb.  490 ;  Terry  v.  Sickles,  13  Cal.  427  ;  White  v.  Hampton^ 
10  Iowa,  238  ;  Tharp  v.  TJiarp,  15  Yt.  105  ;  Langdon  v.  Roane, 
6  Ala.  518.  This  rule  is  held  to  apply  to  accounts  between  mer- 
chants residing  in  different  countries  {Murray  v.  Toland,  3 
Johns.  Ch.  569;  StehMns  v.  JSfiles,  25  Miss.  267;  Freehand  v. 
Heron,  1  Cranch  [U.  S.],  147);  and  it  also  applies  to  an  account 
between  an  attorney  and  his  client.  Case  v.  Hotchkiss,  1  Abb. 
Ct.  App.  (N.  Y.)  324 ;  S.  C,  3  Keyes,  334 ;  Fulliam  v.  Booth,  21 
Ark.  420,  But  it  is  held  that  the  rule  ought  not  to  be  applied  in 
favor  of  the  party,  as  where  he  claims  that  the  statute  of  limita- 
tions commenced  to  run  from  the  time  of  rendering  the  account. 
In  such  case  he  must  show  some  word  or  act  marking  or  imply- 
ing that  he  assented  to  the  account.  White  v.  Camphell,  25 
Mich.  463.     See  Randel  v.  Ely,  3  Brewst.  (Penn.)  270. 

What  is  to  be  regarded  as  a  reasonable  time  within  which  to 
object  to  an  account  rendered,  where  there  is  no  dispute  as  to  the 
facts,  is  matter  of  law.  But  where  the  proofs  are  contradictory, 
the  question  is  one  of  law  and  fact ;  and  in  that  case  may  prop- 
erly be  submitted  to  the  jury,  under  the  instructions  of  the  court 
as  to  the  law.  Wiggins  v.  BurkUam,  10  Wall.  (U.  S.)  129.  See 
Lockwood  V.  Thome,  11  N.  Y.  (1  Kern.)  170  ;  Dams  v.  Tiernan^ 
3  Miss.  (2  How.)  786. 

An  account  containing  an  item  of  a  loan  to  a  third  person,  for 
which  the  party  to  whom  it  is  rendered  is  not  responsible,  does 
not  become  conclusive  as  an  account  stated,  by  being  retained 
for  several  months  {Porter  v.  Lobach,  2  Bosw.  [N.  Y.]  188 ; 
Spangler  v.  Springer,  22  Penn.  St.  454) ;  nor  does  the  rule  of 
"account  stated"  apply  as  against  a  wife  in  favor  of  her  hus- 
band. Southwick  V.  Southwick,  1  Sweeny  (N.  Y.),  47;  S.C.  affirmed, 
49  N.  Y.  (4  Sick.)  510.  It  is  applicable,  however,  to  an  account 
rendered  by  a  land  agent,  if  received  and  not  objected  to  for 


ACCOUNTS  AND  ACCOUNT  STATED.  195 

many  years  ;  such  a  case  not  being  witliin  the  exception  estab- 
lished with  respect  to  persons  holding  confidential  relations  to 
each  other.  Philips  v.  Belden,  2  Edw.  Ch.  (N.  Y.)  1.  See  Holmes 
V.  3forse,  50  Me.  102. 

§  6.  Conclusiveness.  To  entitle  a  plaintiff  to  recover  it  has 
been  held  sufficient  if  he  prove  the  account  stated,  and  this  was 
formerly  conclusive.  Bartlett  v.  Emery ^  1  Term  K.  42,  note. 
But  in  modern  times  a  greater  latitude  has  prevailed,  and  errors 
which  may  have  crept  into  the  account,  may  now  be  shown  and 
corrected.  lb.  Holmes  v.  D'  Camp,  1  Johns.  36 ;  Wilson  v. 
Wilson,  14  Com.  B.  (5  J.  Scott)  626  ;  Thomas'  Adm'r  v.  HawTces, 
8  M.  &  W.  140.  An  account  stated  or  settled  is  a  mere  admis- 
sion that  the  account  is  correct.  It  is  not  an  estoppel.  The  account 
is  still  open  to  impeachment  for  mistakes  or  errors.  Its  effect  is 
to  establish,  prima  facie,  the  accuracy  of  the  items  without  other 
proof ;  and  the  party  seeking  to  impeach  it  is  bound  to  show 
affirmatively  the  mistake  or  error  alleged.  The  force  of  the  ad- 
mission, and  the  strength  of  the  evidence  which  will  be  necessary 
to  overcome  it,  will  depend  upon  the  circumstances  of  the  case. 
An  account  stated,  which  is  shown  to  have  been  examined  by 
both  parties,  and  expressly  assented  to  or  signed  by  them,  would 
afford  stronger  evidence  of  the  correctness  of  its  items  than  if  it 
merely  appeared  that  it  had  been  delivered  to  the  party,  or  sent 
by  mail,  and  acquiesced  in  for  a  sufficient  length  of  time  to  entitle 
it  to  be  considered  as  an  account  stated.  Lockwood  v.  Thome, 
18  N.  Y.  (4  Smith)  285,  292 ;  Champion  v.  Joslyn,  44  N.  Y.  (5 
Hand)  653.  So,  too,  an  account  settled,  that  is,  when  the  balance 
it  exhibits  has  been  paid  or  adjusted  between  the  parties,  is 
stronger  evidence  and  requires  more  proof  to  overcome  it  than 
a  mere  account  stated.  But  the  parties  are  never  precluded  from 
giving  evidence  to  impeach  the  account,  unless  the  case  is  brought 
within  the  principle  of  an  estoppel  in  pais,  or  of  an  obligatory 
agreement  between  the  parties ;  as  for  instance  where,  upon  a 
settlement,  mutual  compromises  are  made.  Lockwood  v.  Thome, 
18  N.  Y.  (4  Smith)  285  ;  Kock  v.  Bonitz,  4  Daly  (N.  Y.),  117,  120  ; 
and  see  Lockwood  v.  Thome,  11  N.  Y.  (1  Kern.)  170 ;  Stentoii 
V.  Jerome,  54  N.  Y.  (9  Sick.)  480  ;  Bucklin  v.  Chapin,  1  Lans. 
(N.  Y.)  443,  447;  Keane  v.  Branden,  12  La.  Ann.  20 ;  Jones  v. 
Dunn,  3  Watts  &  S.  (Penn.)  109  ;  Hutchinson  v.  Market  Bank 
of  Troy,  48  Barb.  302.  See  Scliettler  v.  Smith,  34  N.  Y.  Super.  Ct. 
17.  A  stated  account,  which  is  binding  on  the  original  parties,  is 
also  binding  on  a  guarantor.    Bullock  v.  Boyd,  2  Edw.  Ch.  293. 


196  ACCOUNTS  AND  ACCOUNT  STATED. 

Where  a  balance  is  struck  by  the  parties,  after  a  hearing  before 
referees  has  commenced,  which  is  reported  to  the  referees  and 
entered  by.  them  upon  their  minutes,  the  parties  are  held  to  be 
concluded  by  it.  Clarlc  v.  Faircliild,  22  Wend.  576.  So,  where 
an  "account  settled  "is  relied  on,  byway  of  plea  or  answer  to  a 
bill  in  equity  for  an  account,  it  is  conclusive,  unless  the  plaintiff 
can  allege  and  prove  some  fraud  or  mistake.  Costiii  v.  Baxter, 
6  Ired.  Eq.  (N.  C.)  197.  And  where  a  party  stated  an  account, 
which  he  sent  to  the  other  by  a  messenger,  with  his  check  for  the 
balance,  the  party  receiving  the  check  and  obtaining  the  money 
thereon,  was  held  bound,  although  he  objected  at  the  tim.e,  that 
the  balance  was  too  small.    Davenport  v  .  Wheeler,  7  Cow.  231. 

It  is  held  to  be  no  bar  to  an  action  on  an  account  stated,  that 
the  defendant's  indebtedness  was  for  liquors  sold  by  plaintiff  on 
Sunday,  contrary  to  law,  if  the  account  was  not  stated  on  Sunday. 
But  if  the  sale  was  illegal  for  want  of  a  license,  the  action  on  an 
account  stated  could  not  be  maintained.  Melclioir  v.  McCarty, 
31  Wis. 252 ;  S.  C,  11  Am.  Rep.  605;  see,  also,  Kennedy  y.  Broun, 
13  J.  Scott  (N.  S.),  677 ;  Biinbar  v.  Johnson,  108  Mass.  519. 

§  7.  Opening  account.  When  the  parties  have  adjusted  an  ac- 
count, struck  a  balance,  and  agreed  upon  the  amount  due,  courts 
are  exceedingly  unwilling  to  open  it  again,  unless  there  has  been 
fraud,  or  it  is  very  clear  that  there  has  been  a  mistake.  KocJc 
v.  Bonitz,  4  Daly,  117.  For  "  no  practice  could  be  more  danger- 
ous than  that  of  opening  accounts  which  the  parties  have  them- 
selves adjusted,  on  suggestions  supported  by  doubtful,  or  by 
only  probable  testimony."  Chief- Justice  Marshall,  in  Chap- 
pedelaine  v.  Dechenaux,  4  Cranch,  306.  And  see  Mclntyre  v. 
Warren,  3  Abb.  Ct.  App.  99 ;  Wilde  v.  JenTiins,  4  Paige,  481. 

If,  however,  there  has  been  anj'-  mistake,  omission,  accident, 
fraud,  or  undue  advantage,  by  which  an  account  stated  is  in  truth 
vitiated,  and  the  balance  incorrectly  stated,  equity  will  permit  it 
to  be  opened  and  re-examined  in  toto,  or  as  to  particular  items, 
as  the  allegations  may  warrant.  Farnam  v.  Brooks,  9  Pick.  212  ; 
Rolerts  v.  Totten,  13  Ark.  609  :  Rembert  v.  Brown,  17  Ala.  667; 
Banlchead  v.  Alloway,  6  Coldw.  (Tenn.)  56  ;  Chatham  v.  Niles, 
36  Conn.  403;  La  Trobe  v.  Hayward,  13  Fla.  190;  S7iirks'  Ap- 
peal, 3  Brewst.  (Penn.)  119  ;  Kronenherger  v.  Binz,  56  Mo.  121. 
And  it  is  held  that  when  there  has  been  fraud,  a  court  of  equity 
will  open  and  examine  accounts  after  any  length  of  time,  even 
though  the  person  committing  the  fraud  be  dead.  Bolifeur  v. 
Wtyman,  1  McCord  (S.  C),  156.     So  usurious  charges  in  a  stated 


ACCOUNTS  AND  ACCOUNT  STATED.  197 

account  will  be  corrected  in  equity,  and  relief  seems  open  until 
a  judgment  has  been  obtained,  or  an  award  made  and  performed. 
Bullock  V.  Boyd,  Hoffm.  Ch.  (N.  Y.)  294.  An  account  settled  by 
bond  or  release  may  be  opened  for  fraud  or  collusion,  or  where 
the  settlement  was  made,  under  suspicious  circumstances  {Kelsey 
V.  Holly,  16  Pet.  269  ;  Lorn  v.  White,  4  Hayw.  [Tenn.]  210) ;  but 
in  such  case  the  burden  of  proof  is  upon  the  complainant.  lb. 

It  is  said  that  a  settled  account  between  client  and  attorney, 
or  between  other  persons  standing  in  confidential  relations  to 
each  other,  will  be  more  readily  opened  than  any  others.  See 
Story's  Eq.  Plead.,  §  800 ;  FMlips  v.  Belden,  2  Edw.  Ch.  1 ;  Rem- 
hert  V.  Brown,  17  Ala.  667.  But  an  account  settled  between 
partners  will  not  be  reopened  by  a  court  of  equity  in  absence  of 
proof  of  fraud,  misrepresentation,  or  denial  of  access  to  the 
books.  SM7'Jcs''  Appeal,  3  Brewst.  (Penn.)  119.  In  opening  a 
settled  account,  the  correction  of  errors  is  sometimes  allowed  on 
both  sides.     Floyd  v.  Prlester,  8  Rich.  Eq.  (S.  C.)  248. 

A  stated  account  will  not  be  opened,  where  it  appears  that  the 
plaintiff  has  been  guilty  of  negligence  in  detecting  the  errors  he 
has  discovered.  Bruen  v.  Hone,  2  Barb.  586.  So,  after  the  lapse 
of  twenty  years,  it  is  held  too  late  to  open  a  settlement  of  ac- 
counts, upon  the  ground  of  inadvertency,  when  both  parties 
knew  their  rights.  Hutcliins  v.  Hope,  7  Gill.  (Md.)  119.  See 
Gi'egory  v.  Forrester,  1  McCord  (S.  C),  332.  And,  where  a  party 
not  standing  in  the  relation  of  trustee,  in  stating  his  claim,  omits 
to  give  his  debtor  a  credit  for  a  payment  made,  and  they  settle, 
the  debtor  cannot,  after  the  lapse  of  six  years,  open  the  account, 
on  the  ground  that  he  has  but  recently  discovered  the  mistake. 
Randel  v.  Ely,  3  Brewst.  (Penn.)  270.  And  see  George  v.  John- 
son, 42  N.  H.  456  ;  Ogden  v.  Astor,  4  Sandf.  (N.  Y.)  311. 

A  mistake  in  law  is  no  ground  for  opening  a  settled  account. 
Commissioners,  etc.,  v.  Gherky,  Wright  (Ohio),  493.  Nor  will  a 
stated  account  be  readily  opened  after  the  defendant's  books 
have  been  casually  destroyed,  as  by  fire.  Bruen  v.  Hone,  2  Barb. 
(N.  Y.)  586.  So  after  judgment  and  execution,  and  sale  under  a 
mortgage,  the  account  will  not  be  opened,  although  it  appears  to 
be  irregular.  Bloodgood  v.  Zeily,  2  Caines  (N.  Y.),  124.  And 
where  one  of  the  parties  goes  over  the  account  in  the  presence 
of  the  other,  and  finds  a  certain  balance  due,  which  is  not  ob- 
jected to  by  the  other  party,  it  becomes  an  account  stated,  and 
can  only  be  opened  on  proof  of  fraud  or  mistake.  Kock  v. 
Bonitz,  4  Daly,  117. 


198  ACCOUNTS  AND  ACCOUNT  STATED. 

A  court  of  equity  will  not  open  accounts  and  sustain  claims 
which  are  barred  by  the  statute  of  limitations,  without  exercis- 
ing great  caution.  Stearns  v.  Page^  7  How.  (U.  S.)  819.  And 
lapse  of  time  will  be  allowed  to  protect  delinquents  where  the 
transaction  is  old,  the  accounts  unsettled,  and  the  amount  sought 
to  be  recovered  uncertain,  or  when,  from  the  death  of  parties, 
all  knowledge  of  the  true  state  of  the  accounts  has  passed  into 
oblivion,  and  when  any  attempt  to  settle  and  adjust  the  accounts 
would  probably  result  in  great  injustice  to  the  defendant.  Win- 
ston V.  Street,  2  Patt.  &  H.  (Va.)  169.  See  DaMn  v.  Demming,  6 
Paige,  95 ;  Dexter  v.  Arnold,  2  Sumn.  108  ;  Atwood  v.  Fowler,  1 
Edw.  Ch.  417. 

An  account  stated,  which  has  been  acquiesced  in  for  a  num- 
ber of  years,  without  objection,  will  not  be  opened  (in  the  absence 
of  all  pretense  of  fraud  or  imposition),  except  upon  conclusive 
evidence  of  error  or  mistake ;  and  the  party  who  seeks  to  open 
a  settlement  of  accounts,  on  the  ground  of  mistake,  assumes  the 
burden  of  proving  distinctly  wherein  the  mistake  consisted,  and 
of  furnishing  the  data,  by  which  it  may  be  corrected.  Towsley 
V.  Denison,  45  Barb.  490  ;  Chubbuck  v.  Yernam,  42  N. Y.  (3  Hand) 
432;  BurU  v.  IsUam,  3  Alb.  Law  Jour.  209;  S.C,  53  N.Y.  (8  Sick.) 
631 ;  Mclntyre  v.  Warren,  3  Abb.  Ct.  App.  (N.Y.)  99 ;  Herrick 
V.  Ames,  1  Keyes  (N.  Y.),  190.  See  SutpTien  v.  CusTiman,  35  111. 
186  ;  Dakin  v.  Demming,  6  Paige,  95 ;  Kronenherger  v.  Binz, 
66  Mo.  121. 

When  fraud  is  proved,  it  will  be  a  sufficient  ground  to  open 
the  whole  account.  Brown  v.  Vandyke,  8  N.  J.  Eq.  795  ;  Bruen 
V.  Hone,  2  Barb.  (N.Y.)  586.  So  it  is  held,  that  the  whole  account 
may  be  taken  de  novo,  for  gross  mistake  in  some  cases.  Br  anger 
V.  Chevalier,  4  Cal.  353.  But  this  can  only  be  done  where  such 
a  mistake  or  error  affects  all  the  items  of  the  transaction.  lb. 
Generally,  where  errors  or  mistakes  only  are  shown  to  exist  in 
the  account,  it  will  not  be  opened,  but  the  party  will  merely  be 
permitted  to  surcharge  and  falsify  it.  Bruen  v.  Hone,  2  Barb. 
586  ;  Oover  v.  Hall,  3  Harr.  &  J.  (Md.)  43  ;  Bullock  v.  Boyd,  2 
Edw.  Ch.  (N.  Y.)  293  ;  S.  C,  again,  1  Hoffm.  294.  And  the  mis- 
take or  error  must  be  distinctly  alleged,  lb. 

Accounts  having  been  stated  between  the  parties,  without  fraud 
or  coercion,  and  the  statements  being  accompanied  with  written 
agreements,  showing  how  far  they  should  be  binding,  and  for 
what  cause  they  should  be  varied,  the  accounts  will  be  opened 
so  far  only  as  is  provided  for  by  the  terms  of  such  agreements. 
Troup  V.  HaigM,  Hopk.  Ch.  (N.  Y.)  239. 


ADULTERY.  199 

CHAPTER  YI. 

OF  AN  ACTION  FOR  ADULTERY. 
ARTICLE  I. 

OF   THE   ACTION   IN"  GENERAL. 

Section  1.  Marriage  must  be  proved.  Adultery,  at  the  com- 
mon law,  is  considered  merely  as  a  civil  injury,  for  whicli  the 
only  remedy  afforded  by  the  courts  against  the  adulterer  is  a 
civil  action  for  the  recovery  of  compensation  in  damages.  The 
grounds  of  this  action  are,  the  injuries  sustained  by  the  husband 
in  the  alienation  of  his  wife's  aflfections,  the  destruction  of  his 
comfort  in  her  society,  and  by  compelling  him  to  raise  and  sup- 
port children  not  his  own.  Wilton  v.  Webster,  7  Carr.  &  P.  198  ; 
Smith  V.  Masten,  15  Wend.  270.  And  the  action  may  be  main- 
tained by  the  injured  husband,  after  the  dissolution  of  a  valid 
marriage,  for  debauching  the  wife  while  the  coverture  existed. 
Dickerman  v.  Graves,  6  Cush.  (Mass.)  308 ;  Ratcliff  v.  Wales, 
1  Hill  (N.  Y.),  63. 

But  it  has  long  been  settled,  that  in  an  action  for  criminal  con- 
versation, an  actual  marriage  must  be  proved.  Morris  v.  Miller, 
4  Burr.  2057 ;  Birt  v.  Barlow,  1  Doug.  170  ;  Foioler  v.  Reed,  4 
Johns.  53  ;  People  v.  HumpTirey,  7  id.  314  ;  Kihhy  v.  Rucker,  1 
Marsh.  (Ky.)  391.  The  cohabitation  of  the  parties  as  man  and 
wife,  their  declaration  or  admissions,  or  the  reputation  of  an 
existing  marriage,  or  the  plaintiff's  acknowledgment  of  the 
woman  as  his  wife,  and  holding  her  out  as  such  to  his  friends 
and  acquaintances,  and  her  reception  in  the  family  as  such,  are 
not  sufficient  to  maintain  the  suit.  lb.  Dann  v.  Kingdom,  1 
S.  C.  N.  Y.  (T.  &  C.)  492.  If,  however,  the  defendant  has 
seriously  and  solemnly  admitted  the  marriage,  it  will  be  received 
as  sufficient  proof  of  the  fact.  Forney  v.  Hallacher,  8  Serg.  &  R. 
(Penn.)  159  ;  Rigg  v.  Curgenven,  2  Wils.  399.  And  it  is  suffic- 
ient to  prove  the  marriage  according  to  any  form  of  religion,  as 
Jews,  Quakers,  and  the  like.  See  Bull.  N.  P.  28  ;  2  Greenl.  Ev., 
§  49. 

§  2.  The  husband  must  be  without  fault.  To  maintain  the 
action  for  adultery,  it  is  essential  that  the  husband  should  present 


200  ADULTERY. 

himself  in  court  with  clean  hands  ;  that  is,  withotit  having 
courted  his  own  dishonor,  or  having  been  instrumental  to  his 
own  disgrace.  For,  if  he  has  consented  to,  or  otherwise  connives 
at,  the  adulterous  intercourse  of  his  wife  with  the  defendant,  it 
takes  away  the  ground  of  the  action.  Duherly  v.  Gunning^  4 
Term  R.  651  ;  Bunnell  v.  Greathead,  49  Barb.  106  ;  Eea  v. 
Tucker^  51  III.  110,  But  the  ground  of  the  action  is  not  removed 
by  the  mere  negligence,  inattention,  confidence  or  dullness  of 
apprehension  of  the  husband;  there  must  be  passive  acquiescence 
and  consent,  with  the  intention  and  in  the  expectation  that  guilt 
will  follow.  lb.  Trams  v.  Barger,  24  Barb.  614,  624  ;  Bromley 
V.  Wallace,  4  Esp.  237.  The  rule  of  law  is  stated  to  be,  that  the 
plaintiff  will  be  entitled  to  recover,  unless  he  has,  in  some  degree, 
been  a  party  to  his  own  dishonor,  either  by  giving  his  wife  a 
general  license  to  conduct  herself  as  she  pleased  with  men  gen- 
erally, or  by  assenting  to  the  particular  act  of  adultery  with  the 
defendant,  or  by  having  totally  and  permanently  given  up  all  the 
advantage  to  be  derived  from  her  society.  Winter  v.  Henn^  4  Carr. 
&  P.  494.  Where  a  wife  is  suffered  to  live  as  a  prostitute  with 
the  privity  of  the  husband,  and  the  defendant  has  thereb}^  been 
drawn  in  to  commit  the  act  of  which  the  husband  complains,  the 
action  cannot,  of  course,  be  maintained.  See  Smith  v.  Allison, 
Bull.  N.  P.  27 ;  Sanborn  v.  Neilson,  4  N.  H.  501 ;  Hodges  v. 
Windham  1  Peake,  54. 

§  3.  Separation  by  agreement.  As  the  gist  of  the  action  for 
adultery  is  the  loss  of  the  comfort  and  society  of  the  plaintiff's 
wife,  it  was  held  to  follow,  that  if  the  husband  voluntarily  sepa- 
rated himself  from  his  wife,  it  could  not  be  said  that  he  was 
deprived  of  that  comfort  and  society  which  he  had  himself 
renounced ;  and  that  he  could  not,  therefore,  maintain  the  action. 
Weedon  v.  Tlmhrell,  5  Term  R.  357 ;  Fry  v.  Derstler,  2  Yeates 
(Penn.),  278.  But  this  doctrine  is  questioned,  and  it  is  held  that  a 
deed  of  separation  may  not  preclude  the  action  ;  especially  wliere 
such  deed  contains  a  provision  for  the  attendance  and  care  of 
the  mother  as  it  regards  her  children.  Tlie  husband,  in  sucli  a 
case,  does  not  relinquish  all  claim  to  the  comfort  and  assistance 
of  the  wife.  Chambers  v.  Cauljleld,  6  East,  244;  S.  C,  2  J.  P. 
Smith,  356. 

§  4,  111  treatment  of  wife.  Evidence  of  the  husband's  cruelty 
toward  his  wife,  as  turning  her  out  of  his  house,  refusing  to 
maintain  her,  etc.,  previously  to  the  adulterous  intercourse,  is 
admissible  in  mitigation  of  damages,  in  an  action  for  the  seduc- 


ADULTERY.  201 

tion  of  the  wife,  but  it  does  not  go  in  bar  of  such  an  action. 
Coleman  v.  Wliite,  43  Ind.  429  ;  F aimer  v.  Crook,  7  Gray,  418. 

§  5.  Husband  living  in  adultery.  It  has  been  ruled  in  some  of 
the  early  English  cases,  that  if  the  husband,  after  marriage, 
transgressed  those  rules  of  conduct  which  decency  requires  and 
affection  demands  from  him,  and  in  an  open,  notorious  and 
undisguised  manner,  carried  on  a  criminal  correspondence  with 
other  women,  he  could  not  maintain  an  action  for  the  seduction 
of  his  wife.  Wyndham  v.  Lord  Wycombe,  4  Esp.  16 ;  Skirt  v. 
Marquis  of  Blandford,  id.,  cited.  But  in  a  subsequent  case  it 
was  held  that  the  infidelity  or  misconduct  of  the  husband  could 
never  be  set  up  as  a  bar,  but  only  in  mitigation  of  damages. 
Fromley  v.  Wallace,  4  Esp.  237  ;  and  such  is  now  the  firmly 
established  doctrine  recognized  by  the  courts.  Sanhorn  v.  Neilson, 
4  N.  H.  501 ;  Smith  v.  Masters,  15  Wend.  270  ;  Bunnell  v.  Great- 
head,  49  Barb.  106 ;  Shattuck  v.  Hammond,  46  Yt.  466  ;  S.  C, 
14  Am.  R.  631. 

§  6.  Condonation.  Cohabitation  by  the  husband  with  the  wife, 
after  knowledge  of  her  adultery,  operates  as  a  forgiveness  of  her 
wrong,  but  is  not  a  bar  to  an  action  against  her  seducer  for  dam- 
ages. Verholf  v.  Van  Hourvenlengen,  21  Iowa,  421.  Such  co- 
habitation, though  not  proof,  seems  to  be  evidence  of  collusion.  lb. 

§  7.  Proof  of  the  offense.  Proofs  of  the  offense  must,  in  many 
cases,  be  to  a  great  extent  presumptive.  The  fact  of  adultery  is 
inferred  from  circumstances  that  lead  to  it  by  fair  inference  as  a 
necessary  conclusion.  Loveden  v.  Loveden,  2  Hagg.  Con.  2. 
Real  and  direct  proof  of  the  fact  is  to  be  expected  in  but  a  few 
cases ;  therefore,  the  question  will  be,  whether  there  is  evidence 
of  such  near,  such  approximate  acts,  that  there  must  be  a  legal 
presumption  of  the  adultery.  See  Williams  v.  Williams,  1 
Hagg.  Con.  299 ;  Wood  v.  Wood,  4  Hagg.  Ecc.  138,  n.  Thus, 
general  cohahitation  has  been  held  sufficient  to  establish  the  fact 
of  adultery.  Cadogan  v.  Cadogan,  2  Hagg.  Con.  4 ;  Button 
V.  Rutton,  id.  6,  n.  So,  an  adulterous  disposition  of  the  parties 
having  been  proved,  the  offense  may  be  inferred  from  their  sub- 
sequently being  found  together  in  a  bedroom,  under  circum- 
stances justifying  the  inference.  Yan  Epps  v.  Van  Epps,  6  Barb- 
320 ;  Soilleaux  v.  Soilleaux,  1  Hagg.  Con.  373 ;  State  v. 
Green,  Kirb.  (Conn.)  87.  See  Matchin  v.  Matchin,  6  Barr  (Penn.), 
332.  But  when  the  facts  relied  upon  are  equally  capable  of  two 
interpretations,  one  of  which  is  consistent  with  the  defendant's 
innocence,  they  will  not  warrant  a  verdict  against  him.  Ferguson 

Vol.  I.— 26 


202  i\DULTERY. 

V.  Ferguson,  3  Sandf.  (N.  Y.)  307.  See  Kirhy  v.  The  State,  3 
Humph.  (Tenn.)  289 ;  Homhurger  v.  Homhurger,  46  How.  (N.  Y.) 
346 ;  A.  A.  C.  v.  T.  C,  25  id.  432,  435. 

Neither  the  confessions  of  the  wife,  nor  the  opinions  of  wit- 
nesses concerning  her  fondness  for  the  defendant  are  admissible 
in  evidence  against  liim.  Mc  Yey  v.  Blair,  7  Ind.  590.  But  con- 
versations between  her  and  the  defendant  may  be  given  in  evi- 
dence. Winsmore  v.  Gree7iba7ik,  Willes,  677.  And  in  an  action 
brought  by  a  husband  for  criminal  conversation  with  his  wife,  the 
latter,  after  a  divorce  from  the  bonds  of  matrimony,  is  a  compe- 
tent witness  for  the  plaintiff,  to  prove  the  charge  laid.  Ratcliff 
V.  Wales,  1  Hill  (N.  Y.),  63  ;  Dickerman  v.  Graces,  6  Cush.  308 ; 
Carpenter  v.  White,  46  Barb.  291.  But  while  the  coverture  exists 
she  is  not  a  competent  witness  for  her  husband  in  such  an  action, 
lb.  Hicks  V.  Bradner,  2  Abb.  Ct.  App.  (N.  Y.)  362  ;  S.  C,  35 
How.  118 ;  5  Trans.  App.  239 ;  and  see  Rivenhurgh  v.  Rlrjerir 
burgh,  47  Barb.  419.  *  Letters  written  to  the  wife  by  the  defend- 
ant are  evidence  against  him :  but  the  wife' s  letters  to  the  de- 
fendant are  not  evidence  for  the  defendant  against  the  husband. 
Bull.  N.  P.  28.  As  a  general  rule,  the  wife's  letters  to  the  hus- 
band are  not  admissible  in  evidence  for  him  against  the  defend- 
ant. See  Wilton  v.  Webster,  7  Carr.  &  P.  198.  An  exception  to 
this  rule  is  where  the  letters  have  been  written  by  her  during  an 
absence  from  her  husband,  before  any  suspicion  of  her  miscon- 
duct, and  are  offered  as  evidence  of  her  disposition  toward  him. 
Edwards  v.  Crock,  4  Esp.  39 ;  Trelaiony  v.  Coleman,  1  Barn.  & 
Aid.  30;  S.  C,  2  Stark.  191.  So  in  an  action  of  crim.  con.,  let- 
ters written  by  the  wife  to  third  persons  before  she  became  ac- 
quainted with  the  defendant,  and  in  which  she  mentioned  her 
husband,  are  admissible  in  evidence  to  show  the  state  of  her 
feelings.  Willis  v.  Bernard,  8  Bing.  376 ;  S.  C,  5  Carr.  &  Payne, 
341 ;  1  Moore  &  Scott,  584. 

In  an  action  for  criminal  conversation  with  the  plaintiff's  wife, 
at  a  time  named  within  the  statutory  period  of  limitation  for 
such  actions,  evidence  of  prior  acts  of  adulterous  intercourse, 
upon  which  the  statute  has  run,  is  admissible  for  the  purpose  of 
showing  the  intimate  relations  of  the  parties,  and  of  corroborat- 
ing the  evidence  introduced  to  establish  the  illicit  act  which  is 
within  the  statute,  and  upon  which  a  recovery  is  sought.  Con- 
way V.  NicJiols,  34  Iowa,  533  ;  Duke  of  Norfolk  v.  Germaine,  12 
How.  St.  Tr.  929,  945 ;  Commonwealth  v.  Lohey,  14  Gray,  91 ; 
Commonwealth  v.  Meriam,  14  Pick.  518.    It  has,  liowever,  been 

•  But  see  Laws  N.  Y.  1876,  cli.  426,  ^  1. 


ADULTERY.  203 

held,  that  the  proof  of  acts  within  the  period  must  first  be  ad- 
duced.    Gardiner  v.  Madeira^  2  Yeates  (Penn.),  466. 

Contrary  to  the  general  rule  of  evidence  as  to  matters  of  opinion, 
impression  and  belief  are  held  competent  by  the  ecclesiastical 
courts  in  cases  of  adultery      Crewe  v.  Crewe,  3  Hagg.  Ecc.  128. 

§  8.  Damages.  The  damages  given  by  the  jury  in  a  civil  ac- 
tion for  adultery  should,  in  general,  be  proportioned  to  the 
degree  of  injury  sustained  by  the  husband ;  but  the  court  will 
not  interfere  with  their  estimates  of  damages  unless  the  sum  given 
is  manifestly  and  palpably  outrageous.  Duberly  v.  Gunning,  4 
Term  R.  65? ;  Wilford  v.  Berkeley,  1  Burr.  609 ;  SmitJi  v.  Mas- 
ten,  15  Wend.  270.  Circumstances  of  aggravation  of  the  injury, 
which  may  be  properly  considered  by  the  jury,  are,  the  unblem- 
ished character  and  antecedent  virtuous  behavior  of  the  wife ; 
the  state  of  domestic  happiness  in  which  the  plaintiff  and  his 
wife  had  previously  lived ;  a  marriage  settlement,  or  other  pro- 
vision for  the  children  of  the  marriage  ;  the  relationship  subsist- 
ing between  the  plaintiff  and  the  defendant ;  or,  circumstances  at- 
tending the  intercourse  of  the  parties.  These,  and  other  similar 
topics  are  for  the  proper  and  sole  cognizance  of  the  jury.  See 
Bull.  N.  P.  27 ;  1  Steph.  N.  P.  24  ;  Duke  of  Norfolk  v.  Ger- 
maine,  12  How.  St.  Tr.  927 ;  Wilford  v.  Berkely,  1  Burr.  609. 
So  it  has  been  said  that  the  rank  and  circumstances  of  the  plain- 
tiff may  be  given  in  evidence  by  him.  See  2  Stark,  on  Ev.,  part 
iv,  442.  But  this  has  been  denied  ;  for  the  character  of  the  hus- 
hand  is  not  in  issue,  except  merely  as  far  as  that  relation  is  con- 
cerned. Norton  v.  Warner,  6  Conn.  172.  And  upon  this  point 
it  has  been  remarked,  that  "  it  would  seem  that  the  same  princi- 
ple which  accords  to  the  plaintiff  the  right  to  show,  in  aggrava- 
tion of  damages,  his  rank  and  quality,  would  entitle  the  defend- 
ant to  show  the  same  in  mitigation.  It  would  be  but  bringing 
him  to  the  test  of  a  scale  that  is  graduated  both  ways  from  the 
zero  Q)i  indifference.  If  his  rank  marks  plus  with  reference  to 
that  point,  he  has  the  benefit  in  due  proportion ;  if  minus,  he 
should,  by  the  same  rule  and  reason,  be  subjected  to  the  result- 
ing disadvantage  in  like  proportion."  Baeeet,  J.,  in  Shattuck 
V.  Hammond,  46  Vt.  466 ;  S.  C,  14  Am.  Rep.  631.  See  Rea  v. 
Tucker,  51  111.  110,  which  holds  that  evidence  is  admissible  to 
show  the  condition  in  life  and  the  pecuniary  circumstances  of 
the  respective  parties. 

The  circumstances  in  extenuation,  to  reduce  the  amount  of 
damages,  will  vary  with  every  varying  case.     See  Calcroft  v. 


204  ADULTERY. 

HarhorougTi^  4  Carr.  &  P.  490  ;  Winter  v.  Henn,  id.  494.  The 
defendant  may  show,  in  mitigation  of  damages,  the  previous  bad 
character  and  conduct  of  the  wife,  whether  in  general,  or  in 
particular  instances  of  unchastity  {Conway  v.  Nicliol,  34  Iowa, 
533 ;  Harrison  v.  Price,  22  Ind.  165) ;  or  that  she  made  the  first 
advances  of  a  criminal  nature  toward  him  {Coote  v,  Bertz,  12 
Mod.  232),  and  for  this  purpose  the  wife's  letters  to  the  defend- 
ant may  be  given  in  evidence.  Elsam  v.  Fawcet,  2  Esp.  bQ'i.  So 
the  defendant  may  prove,  in  mitigation  of  damages,  the  plain- 
tiff's  criminal  connection  with  other  women  at  any  time  after 
marriage  and  before  trial.  Shattuck  v.  Hammond,  46  Vt.  466  ; 
S.  C,  14  Am.  Rep.  631.  For,  if  the  plaintiff  was  in  the  habit 
of  improper  intimacy  with  other  women,  his  sense  of  moral  pro- 
priety, and  a  regard  for  chastity,  could  not  be  much  offended 
by  the  loss  of  virtue  in  his  wife.  The  guilt  of  the  defendant  is 
not  diminished,  but  the  plaintiff  has  sustained  less  damage.  The 
merits  of  the  plaintiff,  but  not  the  demerits  of  the  defendant, 
are  less.  Both,  however,  are  considered  by  the  jury  in  forming 
their  verdict,  and  all  circumstances  which  diminish  the  one,  or 
enhance  the  other,  are  proper  subjects  for  their  consideration. 
Savage,  C.  J.,  in  Smith  v.  Masten,  15  Wend.  270,  273.  Circum- 
stances which  show  that  the  plaintiff  possessed  no  comforts  of  a 
domestic  character,  are  proper  to  be  given  in  evidence,  in  miti- 
gation of  damages.  The  defendant  cannot,  with  any  propriety, 
be  chargeable  with  destroying  the  plaintiff's  domestic  comfort, 
when  he  had  never  enjoyed  such  comfort.  lb.  Jones  v.  TJiomp- 
son,  6  C.  &  P.  415 ;  Winter  v.  Wroot,  1  M.  &  Rob.  404 ;  Trelawny 
V.  Coleman,  2  Stark.  191. 

If  the  wife  dies,  pending  an  action  for  adultery,  the  jury 
should  give  damages  for  the  loss  of  the  society  of  the  wife  from 
the  time  of  the  discovery  of  the  adultery  to  the  time  of  her  death, 
and  also  for  the  shock  to  the  feelings  of  the  husband ;  and  this, 
although  there  was  no  suspicion  of  the  wife's  infidelity  till  she  was 
on  her  death-bed,  and  the  husband  continued  to  treat  her  kindly 
up  to  the  time  of  her  death.    Wilton  v.  Webster,  7  Carr.  &  P.  ]  98. 

Ill  a  case  wliere  the  wife  of  the  plaintiff  had  not  been  criminally 
coniipcted  with  the  defendant  alone,  the  jury  were  directed  to 
award  damages  proportioned  to  so  much  of  the  plaintiff's  loss  of 
comfort,  etc.,  as  they  might  suppose  to  have  been  occasioned  by 
the  defendant's  misconduct,  and  not  to  give  damages  for  the 
whole  of  the  injury  that  the  plaintiff  had  sustained.  Gregson  v. 
TJieaJcer,  1  Campb.  415,  n. 


ADVANCEMENT.  205 

CHAPTER  yil. 

ADVANCEMENT. 
ARTICLE  I. 

GENEEAL   EULES   EELATING   TO   ADVANCEMEN^T. 

Section  1.  What  is.  An  advancement,  properly  speaking,  is  a 
gift  by  a  parent  to  his  child,  by  anticipation,  in  whole  or  in  part, 
of  what  it  is  supposed  the  child  would  be  entitled  to  on  the 
death  of  the  parent.  Cawihon  v.  Copi^edge,  1  Swan.  (Tenn.)  487  ; 
and  see  Osgood  v.  Breed,  17  Mass.  358 ;  Christy' s  Appeal,  1 
Grant's  Cas.  (Penn.)  369  ;  Grattan  v.  Grattan,  18  111.  167  ;  Chase 
V.  Ewing,  51  Barb.  597,  612;  YundV s  Appeal,  1  Harris  (Penn.), 
575  ;  Eshleman^s  Appeal,  74  Penn.  St.  42.  Equality  is  equity 
amongst  heirs,  and  the  doctrine  of  advancement  has,  for  its 
object,  the  furtherance  of  this  end.  Miller'' s  Appeal,  31  Penn.  St. 
337.  It  is  said  that  an  advancement  is  to  be  treated  as  "  purely 
an  irrevocable  gift."  lb.  HighV  s  Appeal,  21  id.  283;  Crosty  v. 
Covington,  24  Miss.  619;  Grey  v.  Grey,  22  Ala.  233  ;  O'Brien  v. 
Shiel,  7  Ir.  R.  Eq.  255.  But,  although  it  cannot  be  doubted 
that  every  advancement  is  a  gift,  it  is  also  true  that  there  may  be 
gifts  which  are  not  advancements.  Sanford  v.  Sanford,  61  Barb. 
293,  299  ;  S.  C,  5  Lans.  486.  And  the  question  whether  a  volun- 
tary transfer  of  property  by  a  father  to  a  child  is  to  be  treated 
as  an  absolute  gift,  or  as  an  advancement  upon  the  child's  por- 
tion of  the  father' s  estate,  is  one  of  intention.  The  intention  of 
the  donor,  as  indicated  by  all  the  circumstances  attending  the 
gift,  decides  its  effect.  Harris''  Appeal,  2  Grant's  Cas.  (Penn.)  304  ; 
Meeker  v.  Meeker,  16  Conn.  383 ;  Johnson  v.  Belden,  20  id.  322  ; 

Weaver' s  Appeal,  63  Penn.  St.  309 ;  Youngblood  v.  Norton,  1 
Strobh.  Eq.  (S.  C.)  122;  Law  son' s  Appeal,  23  Penn.  St.  85; 
McCaw  V.  Blewit,  2  McCord's  Ch.  (S.  C.)  103  ;  and  a  gift  made 
absolutely,  cannot  by  subsequent  acts  or  declarations  be  changed 
to  an  advancement.  Lawson's  Apjyeal,  23  Penn.  St.  85.  See 
Sherwood  v.  Smith,  23  Conn.  516. 

.  A  conveyance  to  a  child  either  directly  or  by  a  payment  of  the 
purchase-money  for  land,  and  having  the  deed  made  to  the  child, 
1^  prima  facie  an  advancement.     Weaver's  Appeal,  63  Penn.  St. 


206  ADVANCEMENT. 

309.  But  to  constitute  an  advancement,  it  is  not  requisite  that 
the  provision  should  take  effect  in  the  father's  life-time.  If,  by 
deed,  he  gives  property  to  one  of  his  children,  to  be  possessed 
and  enjoyed  after  his  death,  and  not  before,  it  is  an  advancement. 
Hooli  V.  Hook,  13  B.  Monr.  (Ky.)  526.  Necessary  outfit  for  a 
plantation,  furnished  to  a  child  on  his  commencing  life  for  him- 
self, has  been  held  an  advancement.  Shiver  v.  Brock,  2  Jones 
(N.  C),  137.  See  Sanford  v.  Sanford,  61  Barb.  294.  And  where 
a  gift  was  made  to  the  husband  during  coverture,  and  a  cancel- 
lation of  bonds  of  the  husband  was  made,  for  the  purpose  of 
advancing  his  wife,  the  child  of  the  obligee,  they  were  held  to  be 
advancements  on  behalf  of  the  wife.  Bridgers  v.  HutcMns,  11 
Ired.  (N.  C.)  68  ;  and  see  DiUoe  v.  Cluney,  22  Ohio  St.  436.  So 
the  gift  of  a  life-estate  may  be  an  advancement.  Cawthon  v. 
Coppedge,  1  Swan.  (Tenn.)  487. 

There  is  generally  to  be  found  in  the  statute  laws  of  the  several 
States  a  provision  relative  to  real  and  personal  estates,  concern- 
ing an  advancement  to  a  child,  and  the  statutes  of  the  particular 
State  should  be  examined. 

§  2.  What  is  not  an  advancement.  An  advancement  creates  no 
d^bt  to  the  person  making  it,  and  in  all  its  features,  and  in  its 
very  nature,  is  distinguishable  from  a  debt  or  indebtedness.  Chase 
V.  Ewing,  51  Barb.  597;  Luqueef  s  Estate,  1  Tuck.  (N.  Y.)  236. 
And  where  money  is  lent  or  paid  by  a  father  to  or  for  a  son,  at 
the  request  of  the  latter,  and  an  account  is  stated  by  the  father 
and  interest  charged,  such  loan  or  payment  is  not  an  advance- 
ment, but  constitutes  an  indebtedness.  Harris^  Appeal,  2  Grant's 
Cas.  (Penn.)  304  ;  and  see  Denman  v.  Mc  Mahan,  87  Ind.  241- 
So  money  charged  by  a  parent  against  a  child,  in  the  ordinary 
form  of  account-books,  is  not  to  be  treated  as  an  advancement. 
Ashley'' s  Case,  4  Pick.  21  ;  see,  also,  Proctor  v.  Newhall,  Yl  Mass. 
93;  Osgood  v.  Breed,  id.  359;  Fellows  v.  Little,  46  N.  H.  27; 
Vaden  v.  Hance,  1  Head  (Tenn.),  300.  And  when  a  father  is  in- 
debted to  his  children,  and  gives  them  property  or  money  at  their 
maturity  or  marriage,  the  presumption  is  that  this  is  a  payment 
of  the  debt,  and  not  an  advancement.  Hagler  v.  McCombs,  QQ 
N.  C.  345.  It  is  held,  however,  that  a  testator  has  power  to  con- 
vert the  indebtedness  of  his  children  into  advancements,  by  will. 
Green  v.  Howell,  6  Watts  &  S.  (Penn.)  203 ;  but  see  Dewee's 
Estate.  3  Brewst.  (Penn.)  314  ;  S.  C,  7  Phil.  498. 

Trifling  gifts  ought  not  to  be  charged  as  advancements. 
Mitchell  V.  Mitchell,  8  Ala.  414 ;  Meadows  v.  Meadows^  11  Ired. 


ADVANCEMENT.  207 

L.  (N  C.)  148  ;  Sanford  v.  Sanford,  61  Barb.  293;  5  Lans.  486.  So  a 
gift  for  the  purpose  of  pleasure  or  amusement,  merely,  as  of  a 
saddle  horse,  or  a  buggy,  is  not  considered  an  advancement.  Mc- 
Caw  V.  BleicU,  2  McCord's  Eq.  Ch.  (S.C),  90  ;  Ison  v.Json,  5  Kich. 
Eq.  (S.  C.)  15.  .  But  the  gift  of  a  stallion  to  be  employed  as  a  foal- 
getter  and  for  profit,  is  an  advancement.  lb.  A  gift  to  a  grand- 
child is  deemed  to  be  a  gift  absolute,  rather  than  an  advancement. 
Shiver  v.  BrocJc,  2  Jones  (N.  C),  137.  See  Tliomas  v.  Capps,  5 
Bush  (Ky.),  273.  And,  as  a  general  rule,  money  expended  in 
the  maintenance  and  education  of  a  child  is  not  to  be  deemed 
an  advancement.  Biddle'  s  Estate,  19  Penn.  St.  431 ;  Mitchell  v. 
Mitchell,  8  Ala.  414.  See  Johnson  v.  Belden,  20  Conn.  326 ; 
Cooper  V.  Wray,  3  Strobh.  Eq.  (S.  C.)  185,  But  if  the  intention 
of  the  parent  appears  to  have  been  to  make  an  advancement,  the 
expenditure  will  be  so  treated.  lb.  Millefs  Appeal,  40  Penn.  St. 
57. 

§  3.  In  what  made.  An  advancement  may  be  made  in  money, 
in  personal  property,  or  in  real  estate.  Advancements  in  per- 
sonal property  may  be  made  by  the  delivery  thereof.  See  Autrey 
V.  Autrey,  37  Ala.  614  ;  McCaw  v.  Blewit,  2  McCord's  Ch.  (S.  C.) 
90,  103  ;  Shimr  v.  BrocJc,  2  Jones'  Eq.  (N.  C.)  137.  And  in  real 
estate  by  conveyance,  ^qq  ButcJi' s  Appeal,  51  Penn.  St.  461 ; 
Brown  v.  Burke,  22  Ga.  574  ;  Temper  v.  Barton,  18  Ohio,  418  ; 
Hatch  V.  Straight,  3  Conn.  31.  Under  the  law  of  New  Jersey, 
it  is  held  that  an  advancement  in  money,  made  by  a  father  in  his 
life-time,  to  one  of  his  sons,  cannot  have  any  effect  upon  the 
share  of  the  real  estate  of  the  father,  which,  at  his  death,  de- 
scends to  the  son.  Only  advancements  or  settlements  in  land  can 
have  such  effect.    Haviens  v.  Thompson,  23  N.  J.  Eq.  321. 

§  4.  To  whom  made.  Generally,  an  advancement  is  confined 
to  the  child  of  the  parent.  See  4  Kent's  Com.  419;  Shiver  v. 
Brock,  2  Jones  (N.  C),  137 ;  Skinner  v.  Wynne,  id.  41.  But, 
by  statute  in  some  of  the  States,  as  Maine,  Vermont,  Massachu- 
setts and  Kentucky,  provision  as  to  advancements  is  made  to 
apply  equally  to  grandchildren.  See  Barher  v.  Taylor'*  s  Heirs, 
9  Dana  (Ky.),  85  ;  Porter  v.  Porter,  51  Me.  376.  See,  also,  Sayles 
V.  Baker,  5  R.  I.  457;  Law  v.  Smith,  2  id.  244;  McLure  v. 
Steele,  14  Rich.  Eq.  (S.  C.)  105.     See  post,  §  7. 

§  5.  From  whom.  That  an  advancement,  properly  speaking, 
can  be  made  only  by  a  parent,  see  Cawthon  v.  Coppedge,  1  Swan. 
(Tenn.)  487 ;  Osgood  v.  Breed,  17  Mass.  358 ;  Chase  v.  Ewing, 
51  Barb.  597.     See  post,  §  7. 


208  ADVANCEMENT. 

§  6.  Value  of.  It  is  the  general  rule,  in  settling  the  rights  of 
parties  interested  in  an  estate,  that  advancements  are  to  be  esti- 
mated at  their  value  loTien  they  were  gixien,  or  when  the  grantees 
came  into  possession  of  them  ;  and  not  at  the  time  of  the  testa- 
tor's death,  or  at  that  of  the  settlement.  Jackson  v.  Jackson,  28 
Miss.  674  ;  Ordttan  v.  Grattan,  18  111.  167 ;  Burton  v.  Dickinson^ 
3  Yerg.  (Tenn.)  112;  Hook  v.  Hook,  13  B.  Monr.  (Ky.)  526; 
Clark  V.  Wilson,  27  Md.  693.  Though  in  some  cases  it  is  held 
that  advancements  may  be  estimated  according  to  their  value  at 
the  death  of  the  testator.  Thomas  v.  Gage,  1  Harp.  Ch.  (S.  C.) 
197 ;  Miller's  Appeal,  31  Penn.  St.  337. 

§  7.  Presumptions.  Where  a  man  purchases  land  in  the  name 
of  another,  and  pays  the  consideration  money,  it  is  stated  to  be 
a  presumption  of  law  that  the  purchase  is  intended  for  the  bene- 
fit of  the  purchaser,  and  that  the  conveyance  is  taken  in  trust 
for  him.  See  Jackson  v.  Moore,  6  Cow.  706  ;  Steere  v.  Steere,  5 
Johns.  Ch.  1 ;  4  Kent's  Com.  30.5,  306.  If,  however,  the  convey- 
ance is  taken  in  the  name  of  a  person  for  whom  the  purchaser  is 
under  an  obligation  to  provide,  the  purchase  will  be  deemed, 
prima  facie,  sl  provision  or  advancement,  so  as  to  rebut  the  pro- 
vision of  a  resulting  trust.  Thus,  the  general  rule  of  equity  is, 
that  if  a  father  makes  a  purchase  in  the  name  of  a  son,  even 
though  illegitimate,  it  will  not  be  deemed  a  resulting  trust,  but 
an  advancement.  Page  v.  Page,  8  N.  H.  187.  And  see  Stanley 
V.  Brannon,  6  Blackf.  (Ind.)  193 ;  Welton  v.  Divine,  20  Barb.  9  ; 
Partridge  v.  Havens,  10  Paige,  618 ;  Brown  v.  Burk,  22  Ga. 
574;  Butler  v.  Merchants'^  Ins.  Co.,  14  Ala.  777;  Dudley  v.  Bos- 
worth,  10  Humph.  (Tenn.)  9  ;  Jackson  v.  Matsdorf,  11  Johns.  91 ; 
Dutch)  s  Appeal,  .57  Penn.  St.  461.  So  it  seems  that  when  a 
parent  conveys  land  to  his  child,  without  asking  or  receiving  any 
consideration  therefor,  the  presumption  is  that  it  is  an  advance- 
ment to  the  child,  though  the  deed  recites  a  money  consideration, 
and  contains  an  acknowledgment  of  the  payment  of  it.  Sanford 
V.  Sanford,  61  Barb.  293  ;  S.  C,  5  Lans.  486.  And  where  a  hus- 
band voluntarily  conveys  real  estate  to  his  wife,  the  presumption 
is,  that  no  trust  arises  in  his  favor,  but  that  the  conveyance  is 
intended  as  a  provision  or  advancement.  McCaw  v.  Burk,  31 
Ind.  56 ;  Spring  v.  Hight,  22  Me.  408 ;  Astreen  v.  Flanagan,  3 
Edw.  Ch.  279;  Whitten  v.  WJiitten,  3  Cush.  194.  See  Benaker 
V.  Lafferty,  5  Bush  (Ky.),  88.  The  doctrine  under  consideration 
has  been  held  applicable  to  purchases  made  by  a  mother.  Mur- 
phy V.  Nathans,  46  Penn.  St.  508.     And  see  Smith  v.  Smith,  21 


ADVANCEMENT.  209 

Ala.  76  ;  Dennison  v.  Ooeliring,  7  Penn.  St.  182,  n  ;  Partridge  v. 
Havens,  10  Paige,  618  ;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1. 
But  see,  contra,  Be  Be  Visme,  2  De  G.,  J.  &  Sm.  17. 

Where  securities  are  taken  in  the  name  of  a  child,  the  pre- 
sumption is,  that  it  is  intended  as  an  advancement  {RiJcer  v. 
Kidder,  10  Ves.  366;  S.  C,  2  Mad.  101) ;  and  so  of  securities  taken 
by  a  husband  in  the  name  of  his  wife.  WJiitten  v.  Whitten,  3 
Cush.  194.  And,  in  general,  where  a  gift  of  money  or  property 
is  made  to  a  child  or  heir,  by  a  person  who  afterward  dies  intes- 
tate, the  presumption  is,  that  an  advancement  was  intended. 
HoUister  v.  Atimore,  5  Jones'  Eq.  (N.  C.)  373  ;  Orattan  v.  Grat- 
tan,  18  111.  167  ;  Billman  v.  Cox,  23  Ind.  440  ;  Autrey  v.  Autrey, 
1  Ala.  Sel.  Cas.  542 ;  Mitchell  v.  Mitcltell,  8  id.  414.  And  see 
Weaver's  Appeal,  63  Penn.  St.  309.  So,  where  the  debt  of  a  child 
is  paid  by  the  father,  in  the  absence  of  proof  to  the  contrary, 
such  payment  will  be  presumed  by  the  law  to  be  an  advance- 
ment. Johnson  v  Hoyle,  3  Head  (Tenn.),  Z'q.  And  where  it  is 
shown  that  it  was  at  one  time  the  intention  of  a  decedent  to 
charge  his  children  with  certain  advancements,  the  intent  is  pre- 
sumed to  continue  to  exist,  until  the  contrary  be  shown.  Oiler 
V.  BonebraTze,  65  Penn.  St.  338. 

The  presumption  of  advancement  has  been  held  to  extend  to 
a  grandchild,  the  father  being  dead  {Ebrand  v.  Bancer,  Ch.  Ca. 
26) ;  and  to  a  wife's  nephew  {Currant  v.  Jago,  1  Coll.  Ch.  Ca. 
261) ;  but  not  an  illegitimate  grandchild  {Tucker  v.  Burrow:;  2 
H.  &  M.  515),  or  to  a  kept  woman.  Rider  v.  Kidder,  10  Ves. 
360. 

§  8.  Parol  evidence.  Parol  evidence  as  to  the  relations  and  the 
acts  of  the  parties  is  admissible  to  show  an  advancement.  Parks 
V.  Parks,  19  Md.  323.  See  Parker  v.  McCluer,  3  Abb.  Ct.  App. 
(N.  Y.)  454 ;  1  Trans.  App.  240 ;  3  Keyes,  318  ;  36  How.  301  ; 
5  Abb.(N.S.)  97 ;  and  an  advancement  is  sufficiently  established  by 
a  mere  preponderance  of  testimony.  Middleton  v.  Middleton, 
31  Iowa,  151.  So  the  presumption  of  advancement  is  one  that 
may  be  rebutted  in  every  case  by  parol  evidence.  Tremper  v. 
Barton,  18  Ohio,  418  ;  Jackson  v.  Matsdorff,  11  Johns.  91;  Bill- 
man  V.  Cox,  23  Ind.  440  ;  Smith  v.  Smith,  21  Ala.  761  ;  Woolery 
V.  Woolery,  29  Ind.  249.  Thus,  where  a  parent  purchases  land 
with  his  own  means,  in  the  name  of  his  infant  child,  it  has  gen- 
erally been  considered  an  advancement.  But  the  question  is  one 
of  intention,  each  case  to  be  determined  by  the  reasonable  pre- 
sumption arising  from  all  the  facts  and  circumstances  connected 

Vol.  I.  — 27 


210  ADVANCEMENT. 

witli  it.  To  meet  and  repel  the  presumption  by  proof  of  circum- 
stances showing  that  an  advancement  was  not  intended,  is  always 
competent.  And  when  fraud  is  establislied,  that  presumption  is 
effectually  repelled.  Bay  v.  Cooke,  31  111.  336.  And  see  Brown 
V.  BurJce,  22  Ga.  574 ;  Hodgson  v.  Macy,  8  Ind.  121  ;  Tremper  v. 
Barton,  18  Ohio,  418  ;  Newell  v.  Newell,  13  Vt.  24.  The  same  is 
true  in  the  case  of  a  husband  purchasing  land  in  the  name  of  his 
wife.  Wilson  v.  Beaucliamp,  44  Mise.  556;  McCaw  v.  Burk,  31 
Ind.  5(S.  So  in  the  case  of  a  gift  of  money  or  personal  property, 
the  presumption  of  an  advancement  can  be  rebutted  by  parol 
evidence  of  the  donor's  declarations  at  the  time  of  the  gift,  or 
by  the  donee's  admissions  afterward,  or  by  proof  of  facts  and 
circumstances  from  which  the  intention  may  be  inferred.  Cecil 
v.  Cecil,  20  Md.  153 ;  Dillman  v.  Cox,  23  Ind.  440 ;  Bmith  v. 
Smith,  21  Ala.  761 ;  Christy^ s  Appeal,  1  Grant's  Cas.  (Penn.) 
369  ;  Merrill  v.  Rhodes,  37  Ala.  449  ;  Johnson  v.  Balden,  20 
Conn.  322  ;  Autrey  v.  Autrey,  37  Ala.  614.  But  parol  evidence 
of  declarations  by  a  father,  made  after  the  delivery  of  a  deed  to 
a  child,  explanatory  of  his  intention  in  executing  it,  is  not  admis- 
sible to  repel  a  presumption  of  advancement.  Hatch  v.  Straight^ 
3  Conn.  31;  Bulkeley  v.  Noble,  2  Pick.  337.  And  declarations  of 
intention  to  treat  an  indebtedness  as  an  advancement  has  been 
held  insufficient  to  destroy  the  debt.  Arnold  v.  Barrow^  2  Patt. 
&  H.  (Va.)  1 ;  YundVs  Appeal,  13  Penn.  St.  575. 

No  particular  form  of  words  is  required  to  constitute  an  ad- 
vancement. If  they  show  that  an  advancement  was  intended,  it 
is  sufficient.  Bulkeley  v.  Nohle,  2  Pick.  337.  But  courts  of 
equity,  it  is  said,  will  not  aid  a  defectively  executed  advance- 
ment.     Williams  v.  Mears,  2  Disney  (Ohio),  604. 

§  9.  Hotchpot.  By  the  term  hotchpot,  as  applied  in  modern 
law,  is  to  be  understood,  the  throwing  of  the  amount  of  an  ad- 
vancement made  to  a  particular  child  in  real  or  personal  estate, 
into  the  common  stock,  for  the  purpose  of  a  more  equal  division, 
or  of  equalizing  the  shares  of  all  the  children.  See  4  Kent's  Com. 
419  ;  2  Bl.  Com.  516,  517  ;  2  Burr.  Diet.  32.  In  Louisiana,  where 
the  civil  law  prevails,  this  return  of  property  to  the  mass  of  the 
succession  is  termed  collation,  and  it  takes  place  unless  the  ad- 
vancement was  declared  not  to  be  subject  to  the  collation.  See 
Destrehan  v.  Destrehan,  16  Mart.  557.  As  a  general  thing,  the 
subject  now  under  consideration  will  be  found  regulated  by 
statute  to  a  great  extent,  and  a  few  well-recognized  principles  only 
will  be  here  stated.     Advancements  made  by  an  intestate  to  any 


ADVANCEMENT.  211 

of  Ms  cliildren  are  never  brought  into  hotchpot  for  the  benefit 
of  his  widow.  Millef  s  Estate^  2  Brewst.  (Penn.)  355 ;  Logan  v. 
Logan,  13  Ala.  653  ;  Beavors  v.  Winn,  9  Ga.  189  ;  Kircudbright 
V.  KircudbrigM,  8  Ves.  64 ;  Jackson  v.  Jackson,  28  Miss.  674. 
The  sole  view  is  equality  as  amongst  the  children.  lb.  But,  by 
statute  in  North  Carolina,  advancements  are  to  be  brought  into 
a  distribution  for  the  benefit  of  the  widow.  Davis  v.  Duke,  1 
Taylor,  213.  It  is  believed  to  be  the  general  rule  on  the  subject, 
that  if  a  child  refuses  to  bring  his  advancement  into  hotchpot,  he 
thereby  relinquishes  all  interest  in  the  estate  as  a  distributee. 
Taylor  v.  Beese,  4  Ala.  121 ;  Grattan  v.  Grattan,  18  111.  167.  See 
Phillips  V.  McLaughlin,  26  Miss.  592  ;  Anclreios  v.  Hall,  15  Ala. 
85.  But  the  party  advanced  does  not  relinquish  his  title  to  the 
advancement  by  bringing  it  into  hotchpot.  It  is  brought  in 
merely  to  see  whether  it  exceeds  or  falls  short  of  an  equal  share. 
Jackson  v.  Jackson,  28  Miss.  674.  A  legacy  will  not  be  brought 
into  hotchpot  in  any  case.  Snelgrove  v.  Snelgrove,  4  Desau.  (S. 
C.)  274,  291.  So  neither  rents  nor  profits  of  land,  given  as  an 
advancement,  ought  to  be  brought  into  hotchpot.  But  it  has 
been  held,  that  if  a  father  permits  a  child  to  rent  out  his  land, 
and  receive  the  rents  to  his  own  use,  such  rents  shall  be  brought 
into  hotchpot  as  an  advancement  of  personalty.  Williams  v.- 
Stonestreet,  3  Rand.  (Va.)  559. 

The  doctrine  of  bringing  advancements  into  hotchpot  applies 
only  in  cases  of  entire  intestacy.  Snelgrove  v.  Snelgrove,  4  De- 
sau.  (S.  C.)  274;  Richmond  v.  Yanhook,  3  Ired.  Eq.'  (N.  C.)  581; 
NemilV s  Case,l  Browne  (Penn.),  311 ;  Newman  v.  Wilhourne,  1 
Hill's  Ch.  (S.  C.)  10;  Brewton  v.  Brewton,  30  Ga.  416.  And 
where  a  will  directs  that  the  whole  property  of  the  testator  be 
"disposed  of  as  the  law  directs,"  it  is  deemed  a  disposition  of 
the  estate,  and  advancements  will  not  be  required  to  be  brought 
into  hotchpot  as  in  case  of  intestacy.  Brown  v.  Brown,  2 
Ired.  Eq.  (N.  C.)  309.  See  Black  v.  Whitall,  9  N.  J.  Eq.  572; 
Thompson  v.  Carmichael,  3  Sandf.  Ch.  (N.  Y.)  120.  If  a  person 
gives  all  his  property  to  his  children  by  will,  and  afterward  ac- 
quires real  estate,  and  has  a  posthumous  child,  the  devisees 
must  bring  the  devised  land  into  hotchpot,  in  order  to  entitle 
themselves  to  a  share  of  such  estate.  Yance  v.  Huling,  2  Yerg. 
(Tenn.)  135.  Under  the  law  of  New  York  it  is  held,  that  in  no 
case  can  a  child,  born  after  the  making  of  a  will  by  his  father, 
recover  of  any  brother  or  sister,  born  before  the  will  was  made, 
any  portion  of  any  advancement  his  father  made  in  his  life-time  to 


212  ADVANCEMENT. 

such  brother  or  sister.  Sanford  v.  Sanford,  61  Barb.  293,  298 ; 
S.  C,  5  Lans.  486.  See,  also,  Gordon  v.  BarlceleiD,  6  N.  J.  Law  (2 
Halst.)  94,  in  which  it  is  held,  that  a  child  who  has  received  an 
advancement  cannot  be  required  to  pay  any  thing  on  account  of 
it  to  the  other  children. 

§  10.  Failure  of.  There  will  be  no  failure  of  an  advancement 
on  account  of  the  parent's  indebtedness  at  the  time  of  making 
it,  provided  he  has  property  remaining  clearly  and  abundantly 
sufficient  to  satisfy  all  subsisting  debts.  Miller  v.  Wilson^  15 
Ohio,  108.  So,  the  insolvency  of  the  personal  estate  of  ancestor 
constitutes,  in  equity,  no  objection  to  bringing  an  advancement 
of  personalty  into  hotchpot  with  real  estate,  or  the  proceeds  of 
real  estate.  Young'' s  Estate,  ^  Mdi.  Ch.  461.  An  advancement 
is  not  affected  by  lapse  of  time  or  limitation.  It  operates  by  a 
legal  abstraction  of  that  much  from  the  child's  share  in  the  par- 
ent's life- time;  hence,  it  is  not  controlled  by  the  same  defenses, 
such  as  infancy,  limitation,  etc.,  as  prevent  the  recovery  of  debts. 
Hughes'  Appeal,  57  Penn.  St.  179. 

§  11.  Interest  on.  It  is  the  general  rule  of  law,  in  the  distri- 
bution of  estates,  that  advancements  shall  not  bear  interest,  nor 
is  increase  to  be  charged  to  the  party  to  whom  the  advancement 
was  made.  Miller''  s  Appeal,  31  Penn.  St.  337;  Nelson  v.  Wyan, 
21  Mo.  347;  Hudson  v.  Hudson,  3  Rand.  (Va.)  117;  Osgood  v. 
Breed,  17  Mass.  355;  Towlesx.  Rountree,  19  Fla.  299;  Harris  v. 
Allen,  18  Ga.  177;  Krehs  v.  Krehs,  35  Ala.  293.  ChHdren  last 
paid  are,  however,  entitled  to  interest  from  the  time  when  the 
other  children  received  their  shares.  Tundfs  Appeal,  13  Penn. 
St.  575.  And  see  McDougald  v.  King,  1  Bailey's  Ch.  (S.  C.)  154. 


AGENCY.  213 

CHAPTER  YIII. 

AGENCY. 

TITLE  I. 

OF  THE  GENERAL  PRINCIPLES  RELATING  TO  PRINCIPAL 

AND  AGENT. 

AETICLE  L 

OF  THE  NATURE   OF   AN"   AGENCY. 

Section  1.  In  generaL    So  extensive  and  so  varied  are  the 
wants  of  business,  in  a  civilized  and  commercial  society,  that 
individuals  are  not  able  to  transact  all  their  affairs  in  person,  and, 
therefore,  they  are  compelled  to  employ  others  to  assist  them. 
The  employer  is  the  principal,  and  the  employed  the  agent. 
Every  person  of  full  age,  who  is  not  under  some  legal  disability, 
is  invested  by  the  law  with  a  general  authority  to  dispose  of  his 
own  property,  to  enter  into  contracts,  and  to  perform  acts  which 
relate  to  or  concern  his  personal  rights,  interests,  duties  and  obli- 
gations.    The  law  does  not,  as  a  general  rule,  require  a  party  to 
act  in  proper  person  ;  he  may  do  most  acts  by  the  aid  of  other 
persons,  to  whom  he  may  choose  to  delegate  his  authority,  either 
generally  or  specially,  for  that  purpose.     But,   as  exceptional 
instances,  a  man  cannot  make  a  valid  will,  or  a  binding  contract 
of  marriage,  by  or  through  a  discretionary  agent.    In  th^  exten- 
sive intercourse  of  the  present  day,  the  exigencies  of  trade  and 
commerce,  the  pressure  of  professional,  official,  and  other  pur- 
suits, the  temporary  existence  of  personal  illness  o':  infirmity,  the 
necessity  of  transacting  business  at  the  same  time  in  various  and 
remote  places,  and  the  importance  of  securing  accuracy,  skill, 
ability  and  speed  in  the  accomplishment  of  the  great  concerns 
of  human  life,  must  require  the  assistance  and  labors  of  other 
persons,   in  addition  to  the  immediate  superiptendence  of  the 
party  whose  rights  and  interests  are  to  be  affected  by  the  results. 
The  general  maxims  of  the  law,  upon  this  subject,  are  "what- 
ever a  man  sid  juris  may  do  of  himself,  he  may  do  by  another  ;  " 
and,  as  a  correlative,  whatever  is  done  by  another  is  deemed  to 
be  done  by  the  party  himself. 


214  AGENCY. 

§  2.  Who  may  he  a  principal.  The  general  rule  is,  that  every 
person  of  full  age,  of  sound  mind,  and  not  under  a  legal  disa- 
bility, is  capable  of  becoming  either  a  principal  or  an  agent. 
This  general  rule  will  prevent  several  classes  of  persons  from 
becoming  principals,  and,  therefore,  infants,  married  women, 
idiots,  lunatics,  and  other  persons  not  sui  Juris,  are  either 
wholly  or  partially  incapable  of  appointing  an  agent.  It  has 
been  said  that  an  infant  may  authorize  another  person  to  do  any 
act  which  is  for  his  benefit :  but  he  cannot  authorize  him  to  do 
an  act  which  is  to  his  prejudice.  Story  on  Agency,  §  6  ;  Hurdy  v. 
Waters,  38  Me.  450;  Whitney  v.  Butch,  14  Mass.  463; 
Hastings  v.  Dollarhide,  24  Cal.  195.  But  the  authorities  gener- 
ally hold,  that  an  infant  is  legally  incapable  of  appointing  an 
agent.  Truehlood  v.  Truehlood,  8  Ind.  196  ;  Lawrence  v.  McArter, 
10  Ohio,  37,  42 ;  Bennet  v.  Dams,  6  Cow.  393  ;  Waples  v.  East- 
ings, 3  Harr.  403.     See  1  Am.  Lead.  Cas.  304r-306,  5th  ed. 

There  are  cases  which  hold  that  married  women  are  not  capable 
in  some  cases  of  appointing  an  agent  or  attorney.  But,  at  the 
present  day,  the  tendency  is  to  extend  the  powers  and  rights,  as 
well  as  the  duties  and  liabilities  of  married  women.  In  some  of 
the  States  a  married  woman  is  regarded  in  the  same  light  as  an 
unmarried  female,  so  far  as  the  rights  of  property  are  concerned; 
and  she  may  become  the  owner  of  property  by  descent,  devise, 
gift,  or  purchase,  and  may  deal  generally  with  it  as  her  own. 
And,  in  such  cases,  she  may  employ  another  to  act  for  her  in 
relation  to  her  property,  even  by  appointing  her  husband  as  her 
agent.  Knapp  v.  Smith,  27  N.  Y.  (13  Smith)  277  ;  Woodworth  v. 
Sweet,  51  N.  Y.  (6  Sick.)  8;  Howell  v.  Klein,  44  Ind.  291; 
McLaren  v.  Hall,  26  Iowa,  297.  Before  the  abolition  of  slavery, 
a  master  might  have  employed  his  slave  as  an  agent.  The  Gover- 
nor V.  Daily,  14  Ala.  469;  Chastain  v.  Bowman,  1  Hill  (S.  C), 
270. 

§  3.  Who  may  be  an  agent.  Inasmuch  as  the  law  regards  the 
acts  of  an  agent  as  the  acts  of  his  principal,  there  are  few  per- 
sons who  may  not  act  as  agents  for  a  competent  principal,  even 
though  they  may  not  be  competent  to  act  for  themselves.  And, 
therefore,  infants,  married  women,  persons  attainted,  outlawed 
or  excommunicated,  villeins,  slaves,  and  aliens,  may  act  as  agents 
for  others.  A  wife  may  act  as  the  agent  for  her  husband.  Hopkins 
V.  Mollineux,  4  Wend.  465  ;  Edgerton  v.  Thomas,  9  N.  Y.  (5 
Seld.)  40  ;  Marselis  v.  Seaman,  21  Barb.  319  ;  Picker ing  v.  Pick- 
eringy  6  N.  H.  124  ;  Felker  v.  Emerson,  16  Vt.  653  ;  MacKinley 


AGEXCY.  215 

V.  McGregor^  3  Whart.  369  ;  Singleton  v.  Mamn,  3  Mo.  465;  Can- 
trell  V.  Colwell^  3  Head  (Tenn.),  471;  Lang  v.  Waters,  47  Ala. 
624. 

So  a  husband  may  act  as  the  agent  of  his  wife.  Ready  v. 
Bragg,  1  Head  (Tenn.),  511 ;  Knapp  v.  Smith,  27N.Y.  (13  Smith) 
277  ;  Buckley  v.  Wells,  33  N.  Y.  (6  Tiff.)  518. 

During  the  existence  of  a  war  between  governments  or  States, 
no  agent  can  be  appointed  by  a  citizen  of  one  government  or 
State  to  act  in  the  territory  of  the  other;  and  the  appointment  by 
a  citizen  of  Georgia,  during  the  rebellion,  of  an  agent  in  New 
York,  was  held  unlawful  and  void.  United  States  v.  Grossmayer, 
9  Wall.  72.  See  Hubbard  v.  Matthews,  54  N.  Y.  (9  Sick.)  43*;  S. 
C.,13  Am.  Rep.  562.  An  agent  who  was  appointed  before  the  war 
is  not  within  the  rule,  so  as  to  prevent  him  from  collecting  money 
for  his  principal.  lb.  Robinson  v.  International  Life  Ass.  Co., 
42  N.  Y.  (3  Hand)  54 ;  S.  C,  1  Am.  Rep.  490 ;  Manhattan  Life 
Ins.  Co.  V.  Warwick,  20  Gratt.  614  ;  S.  C,  3  Am.  Rep.  218  ;  Ward 
V.  Smith,  7  Wall.  447.  Though  it  has  been  held  that  war  revokes 
an  agent's  authority.  Howell  v.  Gordon,  40  Ga.  302  ;  Conley  v. 
Burson,  1  Heisk.  (Tenn.)  145. 

Although  a  principal  may,  in  general,  delegate  to  another  the 
power  to  do  what  he  himself  may  do,  there  are  exceptions  to 
this  general  rule.  The  appointment  of  an  agent  to  do  aii  illegal 
act  is  entirely  void.  State  v.  Matthis,  1  Hill  (S.  C),  37.  So, 
although  the  act  to  be  done  may  be  legal,  it  may  be  of  such  a 
confidential  nature  that  the  power  to  exercise  it  cannot  be  dele- 
gated. Ante,  213,  §  1.  A  member  of  a  partnership  cannot  ap- 
point an  agent  to  do  all  the  acts  which  such  partner  might  do, 
unless  with  the  consent  of  the  other  partners.  An  artist  or  a 
professional  man  cannot  substitute  an  agent  to  act  in  his  place, 
without  the  consent  of  the  employer. 

§  4.  An  agent  cannot  delegate  his  authority.  It  is  a  maxim  of 
law  that  a  delegated  authority  cannot  be  re-delegated  ;  or,  in  other 
words,  one  agent  cannot  lawfully  nominate  or  appoint  another  to 
perform  the  subject-matter  of  his  agency.  Broom's  Leg.  Max. 
839.  In  many  cases  an  agent  is  selected  on  account  of  his  skill, 
experience,  or  integrity,  or  for  some  personal  quality,  and  where 
this  is  the  case,  there  is  a  confidence  or  trust  on  the  part  of  the 
employer,  which  cannot  be  betrayed  or  disappointed  by  the 
agent  in  the  selection  by  him  of  some  third  party  to  supply  hia 
place.  Schmaling  v.  ThomUnson,  6  Taunt.  147  ;  McCormick  v. 
Bush,  38  Tex.  314  ;  Lewis  v.  Ingersoll,  3  Abb.  Ct.  App.  55  ;  S. 


216  AGENCY. 

C  ,  1  Keyes,  347  ;  Barret  v.  Rliem,  6  Busli  (Ky.),  466 ;  Lyon  v. 
Burgoyne,  13  B.  Monr.  400  ;  Loomis  v.  Simpson,  13  Iowa,  532  ; 
Bissell  V.  Roden,  34  Miss.  63. 

There  are  exceptions  to  tliis  general  rule,  and  there  may  be 
cases  where  an  authority  to  substitute  may  be  implied  ;  as  where 
it  is  indispensable  by  the  laws,  in  order  to  accomplish  the  end  ; 
or  it  is  the  usual  custom  of  trade  ;  or  it  is  understood  by  the 
parties  to  be  the  mode  in  which  the  particular  business  would  or 
might  be  done ;  or  where  from  the  nature  of  the  agency  a  sub- 
agent  is  necessary.  Laussatt  v.  Llppinojit,  6  Serg.  &  R.  386  ; 
Johnson  v.  Cunningliam,  1  Ala.  (N.  S.)  249  ;  Dorchester  Bank 
V.  New  England  Bank,  1  Cush.  (Mass.)  177. 

§  5.  Of  a  general  or  a  special  agency.  Although  a  party  who 
is  capable  of  doing  an  act  himself  may  do  it  by  another  as  at- 
torney or  agent,  yet  there  are  cases  in  which  the  act  must  be 
done  by  an  agent  or  attorney  ;  as  where  the  principal  is  a  corpo- 
ration, or  mere  artificial  being,  which  cannot  act  except  through 
an  agent  or  attorney. 

An  agency  may  be  general  or  special.  The  distinction  between 
a  general  and  a  special  agent  is  that  the  former,  having  a  wide 
scope  both  of  duty  and  authority,  represents  his  principal  in  all 
matters  within  the  ordinary  limits  of  the  principal's  business, 
and  this  may  be  in  one  or  more  places  ;  the  latter  is  one  whose 
authority  is  definitely  limited,  and  whose  duty  is  specified. 
Cruzan  v.  Smith,  41  Ind.  288.  A  person  who  is  authorized  by 
his  principal  to  execute  all  deeds,  sign  all  contracts,  or  purchase 
all  goods  required  in  a  particular  trade,  business,  or  employ- 
ment, is  a  general  agent  in  that  trade,  business,  or  employment. 
But  a  person  who  is  authorized  by  his  principal  to  execute  a 
particular  deed,  or  to  sign  a  particular  contract,  or  to  purchase 
a  particular  parcel  of  goods,  is  a  special  agent. 

A  person  who  is  not  a  general  agent  in  the  proper  sense  of  that 
terra  may  still  have  a  general  authority  in  regard  to  a  particular 
object  or  thing  ;  as,  to  buy  or  sell  a  particular  parcel  of  goods, 
or  to  negotiate  a  particular  note  or  bill ;  since  his  agency  is  not 
limited  in  the  purchase  or  sale  of  such  goods,  or  the  negotiating 
of  such  note  or  bill,  or  to  any  particular  mode  of  doing  it. 
Whitehead  v.  Tuckett,  15  East,  408 ;  Anderson  v.  Coonley,  21 
Wend.  279;  Nelson  v.  Hudson  Elver  R.  R.  Co.,  48  N.  Y.  (3 
Sick.)  498,  509 ;  Shelton  v.  Merchants'  Dispatch  Trans.  Co.,  59 
N.  Y.  (14  Sick.)  258. 


AGENCY.  217 


ARTICLE  II 

OF  THE    DIFFEEENT   KINDS   OF   AGENTS. 

Section  1.  In  general.  It  is  not  practicable  to  specify  all  the 
kinds  of  business  or  transactions  in  which  agents  may  be  em- 
ployed, or  to  enumerate  the  kinds  or  classes  of  agents  in  detail. 
And,  since  this  .work  will  contain  titles  which  will  explain  the 
rights,  duties  and  liabilities  resulting  from  the  existence  of  agen- 
cies, it  will  only  be  necessary  in  this  place  to  name  some  of  the 
more  general  classes  of  agents.  Among  these  are  attorneys  at 
law,  attorneys  in  fact,  auctioneers,  brokers,  factors,  consignees, 
supercargoes,  ships'  husbands,  masters  of  ships,  and  partners. 

In  many  cases  there  is  but  a  single  principal,  and  a  single 
agent ;  but  there  may  be  two  or  more  principals,  as  well  as  two 
or  more  agents.  And  in  relation  to  principals,  the  general  rule 
is,  that  if  each  has  a  several  and  a  distinct  interest,  no  one  of 
them  can  ordinarily  appoint  an  agent  for  all  of  the  others,  with- 
out the  assent  and  concurrence  of  all  of  them.  Thus,  where  two 
persons,  by  a  joint  instrument,  consign  two  parcels  of  goods  to  a 
consignee  for  sale,  where  one  of  the  parties  owns  one  parcel  of 
the  goods,  and  the  other  party  owns  the  other  parcel ;  in  such 
a  case,  no  joint  interest  or  joint  agency  would  be  created  ;  but 
the  consignee  would  become  the  several  factor  of  each  owner ; 
and  the  owner  of  one  parcel  could  not  give  instructions  to 
the  consignee  which  would  be  binding  upon  both,  unless  by 
the  express  or  implied  consent  of  the  other.  But,  unless  the 
consignee  knows  the  facts,  he  will  be  at  liberty  to  treat  it  as  a 
joint  consignment  for  the  benefit  of  both,  in  which  case  the  in- 
structions of  either,  like  the  instructions  of  a  partner,  will  be 
binding  upon  the  other,  and  both  will  become  jointly  liable  to  him 
for  his  commissions  and  disbursements.  So  where  different  per- 
sons have  separate  and  distinct,  although  undivided,  interests  in 
the  same  personal  property,  one  of  them  cannot  sell  the  interest 
of  the  other.  Wliite  v.  Oshorn,  21  Wend.  72  ;  Dyckman  v.  yali- 
ente,  42  N.  Y.  (3  Hand)  549  ;  Tyler  v.  Taylor,  8  Barb.  585  ; 
Ward  V.  Gaunt ^  6  Duer,  257. 

And  what  he  could  not  lawfully  do  himself,  he  could  not 
authorize  an  agent  to  do. 

A  different  rule  prevails  in  the  cases  of  partnerships,  for  there 
each  partner  acts  for  himself,  as  well  as  agent  for  the  others.  See 
Partnership. 

Vol.  I.  — 28 


218  AGENCY. 

Sometimes  two  or  more  agents  are  appointed  ;  and  the  general 
common-law  rule  is,  that  when  an  authority  is  conferred,  by  the 
principal,  upon  two  or  more  persons  to  do  a  mere  private  act, 
such  act  will  not  bind  the  principal  unless  all  the  persons  join  in 
doing  it.  Sinclair  v.  Jackson,  8  Cow.  543  ;  Heard  v.  March,  12 
Gush.  (Mass.)  580 ;  Low  v.  Perkins,  10  Yt.  532 ;  Rollins  v. 
Phelps,  5  Minn.  463 ;  Union  Bank  v.  Beirne,  1  Gratt.  226.  But 
the  authority  may  be  given  in  such  terms  as  to  authorize  a 
several  execution ;  or  an  execution  by  a  majority  or  other  num- 
ber less  than  the  whole.  Hawley  v.  Keeler,  53  IS.  Y.  (8  Sick.) 
114  ;  62  Barb.  231 ;  Cedar  Rapids,  etc.,  R.  R.  Co.  v.  Stewart,  25 
Iowa,  115 ;  French  v.  Price,  24  Pick.  13 ;  Guthrie  v.  Armstrong^ 
5  B.  &.  Aid.  628. 

Where  two  persons  are  appointed  agents  jointly  to  take  charge 
of  the  business  of  their  principal  for  a  specified  term,  if  one  of 
them  becomes  incapacitated,  the  business  cannot  be  performed 
by  the  other  alone,  without  the  consent  of  the  principal,  who  has 
a  right  to  discontinue  the  agency.  Salisbury  v.  Brisbane,  61  N. 
Y.  (16  Sick.)  617. 

AETICLE  III. 

OF  THE  APPOIKTMENT   OF  AGENTS. 

Section  1.  How  appointed.  An  agent  may  be  appointed  by  a 
written  sealed  instrument,  an  unsealed  written  instrument,  or  by 
a  verbal  authority  without  writing.  This  authority  may  be  con- 
ferred before  any  act  is  done  by  the  agent,  or  it  may  be  estab- 
lished by  a  ratification  of  acts  previously  done  by  one  who 
assumed  to  be  an  agent,  although  he  had  no  authority  as  agent 
at  the  time  the  act  was  done.  It  will  be  sufficient  that  there  is 
satisfactory  evidence  of  the  fact  that  the  principal  employed  the 
agent,  and  that  the  agent  undertook  the  trust. 

§  2.  By  deed  or  sealed  instrument.  There  are  a  few  exceptions 
to  the  general  rule  just  mentioned.  One  of  them  is,  that  when- 
ever any  act  of  agency  is  required  to  be  done  in  the  name  of  the 
principal,  under  seal,  the  authority  to  the  agent  or  attorney  to  do 
the  act  must  generally  be  conferred  by  an  instrument  under  seal. 
Worrall  v.  Munn,  5  N.Y.  (1  Seld.  j  229 ;  Cooper  v.  Rankin,  5  Binn. 
613  ;  McNaughton  v.  Partridge,  11  Ohio,  223 ;  Cummins  v.  Cas- 
silly,  5  B.  Monr.  (Ky.)  75 ;  HibUewhite  v.  McMorine,  6  Mees.  & 
Wels.  200 ;  Preston  v.  Hull,  22  Gratt.  (Ya.)  600 ;  Rowe  v.  Ware, 
30  Ga.  278 ;  Scheutze  v.  Bailey,  40  Mo.  69. 


AGENCY.  219 

§  3.  By  parol,  or  by  an  unsealed  writing.  But  the  law  does 
not  require  that  an  authority  to  an  agent  to  sign  an  unsealed 
paper,  or  a  written  contract,  shall  also  be  conferred  or  evidenced 
by  a  writing.  Riley  v.  Minor ^  29  Mo.  439 ;  Lawrence  v.  Taylor^ 
5  Hill,  107;  McWhorter  y.  McMahan,  10  Paige,  386;  Worrall 
V.  Munn,  5  N.  Y.  (1  Seld.)  229 ;  Newton  v.  Bronson,  13  N.  Y. 
(3  Kern.)  587;  Baum  v.  Dubois,  43  Penn.  St.  260.  If  it  is  proved 
that  the  appointment  of  an  agent  was  in  writing,  and  there  is  a 
dispute  as  to  the  extent  of  the  power  conferred,  the  paper  itself 
must  be  produced  or  accounted  for.  Neal  v.  Patten,  40  Ga.  363 ; 
Eawson  v.  Curtiss,  19  111.  456. 

§  4,  By  corporations.  By  the  old  common  law  an  agent  of  a 
corporation  must  be  appointed  under  the  corporate  seal.  At  the 
present  day,  no  such  rule  prevails,  and  an  agent  may  be  duly 
and  legally  appointed  by  the  trustees,  directors,  or  other  officers 
of  the  corporation,  by  a  written  vote  properly  taken.  Smith  v. 
Birmingham  Gas  Co.,  1  Ad.  &  E.  526 ;  Oshorn  v.  Banlc  of 
United  States,  9  Wheat.  738 ;  Bates  v.  BanTc  of  Alabama,  2  Ala. 
(N.  S.)  245. 

So  the  authority  of  an  agent  may  be  implied  or  inferred  by  the 
subsequent  acts  of  the  corporation  recognizing  and  adopting  the 
acts  of  one  who  has  assumed  to  act  as  its  agent.  Franklin  v. 
Globe  Mutual  Life  Ins.  Co.,  52  Mo.  461 ;  Warren  v.  Ocean  Ins. 
Co.,  16  Me.  409 ;  Bank  of  United  States  v.  Bandridge,  12  Wheat. 
64 ;  Olcott  V.  Tioga  R.  R.  Co.,  27  N.  Y.  (13  Smith)  546  ;  Bent  v. 
North  American  Steamship  Co.,  49  N.  Y.  (4  Sick.)  390  ;  Ketclium 
V.  Verdell,  42  Ga.  534. 

§  5.  Express  or  implied  authority.  An  agency  may  be  implied 
or  inferred  from  the  relation  of  the  parties,  and  the  nature  of 
the  employment,  without  proof  of  any  express  appointment.  It 
may  be  presumed  from  repeated  acts  of  the  agent,  if  they  are 
adopted  and  confirmed  by  the  principal  previously  to  the  mak- 
ing of  the  contract,  or  the  doing  of  the  act,  in  relation  to  which 
the  question  is  raised.  Commercial  Bank  of  Buffalo  v.  Warren, 
15  N.  Y.  (1  Smith)  573  ;  Sweetser  v.  French,  2  Cush.  (Mass.)  309 ; 
Jones  V.  Booth,  10  Yt.  107 ;  Bank  of  Kentucky  v.  Brooking,  2 
Litt.  (Ky.)  41 ;  Gulick  v.  Grover,  33  N.  J.  L.  (4  Vr.)  463 ;  Kountz 
V.  Price,  40  Miss.  341. 

A  subsequent  ratification  of  the  unauthorized  acts  of  an 
agent  must,  to  be  valid,  be  with  a  full  knowledge  by  the  princi- 
pal of  all  the  material  facts  in  the  case.  Seymour  v.  Wyckoff,  10 
N.  Y.  (6  Seld.)  213;  Baldioin  v.  Burrows,  47  N.  Y.  (2  Sick.)  199, 


220  AGENCY. 

212  ;  Lester  v.  Kinne,  37  Conn.  9  ;  Wriglit  v.  Burhanh,  64  Penn. 
St.  247. 

So  the  subsequent  ratification  by  a  principal  of  the  unauthor- 
ized acts  of  one  who  assumed  to  be  his  agent,  must,  to  be  valid, 
be  with  a  full  knowledge  of  the  facts  which  affect  his  rights. 
Mxon  V.  Palmer,  8  N.  Y.  (4  Seld.)  398  ;  Williams  v.  Storm,  6 
Coldw.  (Tenn.)  203. 

Where  the  facts  are  undisputed,  and  the  only  question  is 
whether  the  agent  has  the  requisite  authority  to  bind  his  princi- 
pal, such  question  is  one  of  law  for  the  court,  whether  the 
authority  is  sought  to  be  sustained  by  a  previous  authority,  or 
by  a  subsequent  ratifiication.  Gulick  v.  Grover,  33  N.  J.  L.  (4  Vr.) 
463. 

ARTICLE  IV. 

OF  THE   NATURE   AND   EXTENT  OF  AN   AGENT'S   AUTHORITY. 

Section  1.  In  general.  Whatever  an  agent  does,  within  the 
scope  of  his  authority,  is,  in  legal  effect,  the  act  of  his  principal, 
who  is  entitled  to  its  advantages,  and  is  also  subject  to  its  liabili- 
ties. And  it  is  for  this  reason  that  principals  may  employ  as 
agents,  in  the  performance  of  their  business,  persons  who  have 
no  legal  capacity  to  make  general  valid  contracts  upon  their  own 
account.  Infants  are  not  personally  bound  by  their  contracts, 
unless  they  relate  to  the  purchase  of  necessaries,  or  the  like ;  and 
yet  they  may  act  as  agents  for  others,  and  make  contracts  which 
are  as  binding  upon  the  principal  as  though  the  agent  were  of 
full  age.  It  is,  therefore,  the  duty  of  the  principal  to  protect  his 
own  rights,  when  he  selects  an  agent  to  transact  his  business  ; 
and  if  he  neglects  to  do  so,  he  will  be  compelled  to  bear  the  loss 
which  may  result  from  his  own  indifference  or  negligence.  And 
since,  on  the  other  handj  the  principal  is  entitled  to  the  benefits 
resulting  from  the  agent's  acts,  it  is  for  his  interest  to  select  none 
but  those  possessing  intelligence,  business  capacity  and  tact,  as 
well  as  experience,  and  above  all,  possessed  of  the  strictest  in- 
tegrity. In  the  selection  of  an  agent,  the  principal  ought  always 
to  bear  in  mind  that  he  may  suffer  great  loss  from  the  acts  of  an 
incompetent,  inexperienced,  or  dishonest  person  ;  and  that  he 
may  also  lose  all  the  profits  or  advantages  that  would  naturally 
result  from  the  selection  of  a  proper  person.  If  a  principal  em- 
ploys an  agent  whom  he  knows  to  be  incompetent  to  conduct  his 
business  properly,  and  a  loss  ensues  in  consequence,  the  result 


^^ 


AGENCY.  221 

is  owing  to  his  own  folly,  and  lie  must  bear  the  loss.  WaJceman 
y.  Hazleion,  3  Barb.  Ch.  148. 

§  2 .  An  agent's  authority  includes  the  usual  and  necessary 

cans  of  executing  it.  It  is  not  possible  to  foresee  and  to  give 
directions  as  to  all*  events  or  things  that  may  occur  in  the  course 
of  executing  the  authority  conferred  upon  an  agent.  In  many 
cases  there  must  be  a  large  exercise  of  discretionary  power  by  an 
agent.  And,  in  determining  what  authority  has  been  given,  it 
may,  as  a  general  rule,  be  assumed  that  the  principal  intended 
to  give,  and  that  the  authority  conferred,  includes,  and  carries 
with  it,  the  power  to  employ  all  the  usual  and  necessary  means 
of  executing  it  in  such  manner  as  to  accomplish  the  objects  which 
the  principal  had  in  view  in  creating  the  agency. 

The  illustrations  of  this  rule  are  numerous  and  varied.  The 
cashier  of  a  bank,  as  its  executive  officer  having  charge  of  all 
its  moneyed  transactions  in  paying  and  receiving  debts,  and  dis- 
charging and  transferring  securities,  has  authority  to  take  such 
measures  for  the  security,  and  eventual  collection  of  a  debt  due 
to  the  bank,  as  he  deems  proper,  and  to  act  in  reference  to  the 
collection  and  compromise  of  the  debt,  according  to  the  general 
usage,  practice  and  course  of  business.  BridenhecTcer  v.  Low- 
ell, 32  Barb.  9,  17;  Minor  v.  Mechanis'  BanJc  of  Alexandria,  1 
Peters,  46. 

An  agent  who  is  employed  to  collect  a  debt  or  claim  may  re- 
sort to  such  usual,  proper  and  effective  modes  as  the  law  fur- 
nishes. Merrick  v.  Wagner,  44  111.  266.  He  may  commence  an 
action  and  prosecute  it  to  judgment  and  execution.  3fcMinn 
V.  BicMmyer,  3  Hill,  236;  BusJi  v.  Miller,  13  Barb.  481,  488; 
Scott  V.  Elmendorf,  12  Johns.  317;  Hirshjield  v.  Landman,  3  E. 
D.  Smith,  208. 

And,  where  the  law  permits  it,  he  may  have  the  defendant 
arrested.  Howard  v.  Baillie,  2  H.  Bla.  618,  620;  Randall  v. 
Harvey,  Palm.  394;  or  have  his  property  attached.  Trenton 
Banking  Co.  v.  Haner stick,  6  Halst.  (N.  J.)  171;  Fairbanks  v. 
Stanley,  18  Me.  296. 

So,  an  attorney  who  prosecutes  an  action,  and  obtains  a  judg- 
ment, may,  without  any  other  authority  than  his  retainer  in  the 
suit,  demand  from  the  debtor  an  assignment  of  his  choses  in  ac- 
tion, and  on  his  refusal  to  comply,  institute  proceedings  under 
the  non-imprisonment  act.  Steward  v.  Biddlecum,  2  N.  Y.  (2 
Comst.)  103.  See  Gorliamw.  Gale,  7  Cow.  739;  Lem  v.  Abbott,  4 
Exch.  588 ;  Erwin  v.  Blake,  8  Peters,  18.    A  general  agent  of  a 


222  AGENCY. 

town  has  sufficient  authority  to  employ  counsel  to  defend  an 
action  brought  against  the  town.   Knowlton  v.  Inliahitants,  etc., 

14  Me.  20. 

An  agent  who  is  authorized  to  make  contracts  for  the  purchase 
of  grain  has  power  to  modify  or  cancel  such  contracts  as  he 
may  have  made.  Anderson  v.  Coonley,  21  Wend.  279.  And  if 
the  agent  rescinds  a  sale  made  by  him,  his  principal  becomes 
liable  to  refund  any  money  paid  upon  such  contract.  Bloomer 
V.  Denman^  12  111.  240.  An  authority  to  purchase  grain  neces- 
sarily includes  an  authority  to  give  directions  as  to  its  delivery. 
Owen  V.  Brockschmidt,  54  Mo.  285.  So  an  authority  to  deliver 
goods  to  a  common  carrier  for  transportation  includes  all  neces- 
sary and  usual  means  of  carrying  it  into  effect,  and,  among  other 
things,  the  power  to  stipulate  for  the  terms  of  transportation. 
Nelson  v.  Hudson  Rimr  R.  R.  Co.,  48  N.  Y.  (3  Sick.)  498;  Shel- 
ion  V.  Merchants'^  DispatcTi  Trans.  Co.,  59  N.  Y.  (14  Sick.)  268; 
S.  C,  48  How.  257.  An  authority  to  make  a  sale  of  lands  and 
receive  the  purchase-money  will  empower  the  agent  to  execute 
the  proper  instrument  required  by  law  to  carry  the  sale  into 
effect.  Valentine  v.  Piper,  22  Pick.  85,  92.  So  an  authority  to 
sell  and  convey  lands  for  cash  confers  on  the  attorney  or  agent 
the  right  to  receive  the  purchase-money.    Johnson  v.  McGruder, 

15  Mo.  365 ;  Hackney  v.  Jones,  3  Humph.  (Tenn.)  612. 

A  power  to  an  agent  to  sell  lands,  on  such  terms  in  all  respects 
as  he  might  deem  most  advantageous,  and  to  execute  deeds  of 
conveyance  necessary  for  the  full  and  perfect  transfer  of  the 
title,  authorizes  the  agent  to  insert  in  the  deed  the  usual  coven- 
ants of  wari-anty.  LeRoy  v.  Beard,  8  How.  (U.  S.)  451.  And  see 
Yery  v.  Levy,  13  id.  345. 

So  an  agent,  whether  general  or  special,  who  is  authorized  to 
sell  personal  property  is  presumed  to  possess  the  power  of  war- 
ranting its  quality  and  condition,  unless  the  contrary  appear. 
Nelson  v.  Cowing,  6  Hill,  336  ;  Tlce  v.  Gallop,  5  N.  Y.  S.  C  (T. 
&  C.)  51;  S.  C,  2  Hun,  446;  Franklin  v.  Ezell,  1  Sneed  (Tenn.), 
497;  Skinner  v.  Ounn,  9  Port.  (Ala.)  305;  Palmer  v.  Hatch,  46 
Mo.  585.  See  Bryant  v.  Moore,  26  Me.  84.  So  an  agent,  employed 
to  sell  negotiable  paper,  may,  in  the  absence  of  any  limitation 
of  his  authority,  represent  it  as  a  business  note  and  valid.  Fer- 
guson V.  Hamilton,  35  Barb.  427,  442;  Fenn  v.  Harrison,  4  T. 
R.  177.    But  see  Lipscomb  v.  Kitrell,  11  Humph.  256. 

An  agent  who  is  employed  to  purchase  goods  by  a  principal 
who  does  not  furnish  the  money  to  pay  the  purchase  price,  is  au- 


AGEXCY.  223 

thorized  to  buy  on  credit.  Sprague  v.  Gillette  9  Mete.  (Mass.)  91; 
Perrotln  v.  Cuculla^  6  La.  587.  See  Fatman  v.  Leet,  41  Ind.  133. 
An  authority  to  a  broker  to  buy  a  cargo  of  produce,  and  to  load 
it  upon  a  vessel,  does  not,  by  implication,  and  in  the  absence  of 
any  sufficient  custom,  give  him  power  to  borrow  tlie  money  for 
sucli  purchase,  upon  the  credit  of  the  principal,  and  to  give  bills 
or  notes  for  the  amount.  Bank  of  India  v.  Bughee,  1  Abb.  Ct. 
A  pp.  86;  3  Keyes,  641;  3  Trans.  App.  243.  See  TahorY.  Cannon, 
8  Mete.  456;  Paige  v.  Stone,  10  id.  160.  An  agent  who  has  a  dis- 
cretionary power  to  sell  goods  and  collect  the  price,  has  an 
implied  authority  to  make  any  deduction  from  the  original  price 
that  could  have  been  made  by  the  principal.  Taylor  v.  Nuss- 
hauni,  2  Duer,  302.  An  agent,  who  is  employed  to  sell  goods, 
may  sell  them  upon  credit,  if  that  mode  is  according  to  the  usa- 
ges of  trade,  and  he  is  not  restrained  by  his  instructions,  if  he 
does  not  unreasonably  extend  the  term  of  credit,  and  if  he  uses 
due  diligence  for  the  purpose  of  learning  whether  the  purchaser 
is  solvent.  Van  Aleti  v.  Yanderpool,  6  Johns.  69 ;  Clark  v. 
Van  Northwick,  1  Pick.  343;  Greely  v.  Bartlett,  1  Green].  172; 
Laussattv.  Lippincott,  6  Serg.  &  R.  386;  Forrestier  v.  Board- 
man,  1  Story,  43;  Porter  v.  Payne,  9  Iowa,  549. 

An  authority  to  sell  "upon  credit,"  means  a  reasonable  credit, 
and  the  question  of  reasonableness  is  one  of  fact.  Brown  v. 
Central  Land  Co.,  42  Cal.  257. 

Acting  as  clerk  for  a  merchant  does  not  authorize  the  clerk  to 
sign  the  name  of  the  principal  to  notes  in  his  absence.  Terry  v. 
Fargo,  10  Johns.  114;  Smitli  v.  Gibson,  6  Blackf.  369.  But, 
where  it  appears  that  a  clerk  of  a  mercantile  house  has  before 
signed  notes  or  bills  with  the  assent,  or  to  the  knowledge  of  the 
principals,  without  dissent,  a  jury  may  find  that  there  was  au- 
thority to  sign  a  note  of  a  similar  kind  at  a  subsequent  time. 
Dows  V.  Green,  16  Barb.  72.  See  Stevenson  v.  Hoy,  43  Penn.  St. 
191.  A  special  authority  from  the  owner  to  look  up  property 
mislaid  or  lost  by  a  common  carrier  does  not  imply  any  author- 
ity to  settle  for  the  damages  resulting  from  the  carrier's  neglect. 
Congar  v.  Galena  c&  Chicago  Union  B.  R.  Co.,  Yt  Wis.  477, 484. 
An  agent  who  acts  under  a  general  power  of  attornej^,  which 
gives  him  power  to  draw  or  indorse  checks  for  and  in  the  name 
of  his  principal,  has  no  authority  to  overdraw  his  principal's 
account  at  the  bank.  Union  Bank,  etc.  v.  Mott,  39  Barb.  180. 
Where  there  are  two  agents,  who  receive  their  instructions 
directly  from  the  principal,  and  each  agent  is  independent  of  the 


224  AGENCY. 

other,  neither  of  them  has  a  right  to  repudiate  the  acts  of  the 
other,  unless  by  special  authority  of  the  principal.  Law  v.  Cross, 
1  Black.  (U.  S.)  533.  An  authority  to  an  agent  to  collect  or  secure 
a  debt  does  not  authorize  him  to  take  property  in  payment  of  the 
debt.  Taylor  Y.  Robinson^  14  Cal.  396;  Earnhart  y.Rohertson, 
10  Ind.  8.  So  an  agent  employed  to  collect  a  bond  is  not  au- 
thorized to  take  notes  instead  of  money  ;  and  the  party  paying 
in  notes  must  see  that  the  agent  is  authorized  to  accept  them  in 
payment.  Mathews  v.  Hamilton,  23  111.  470 ;  Corning  v.  Strong, 
1  Cart.  (Ind.)  327. 

Yet,  where  a  foreign  creditor  of  a  debtor  who  was  on  the  eve 
of  bankruptcy  gives  his  agent  written  authority  to  "see"  the 
debtor  "  in  regard  to  "  the  debt,  with  "  full  authority  to  act  for" 
such  creditor  "in  the  matter,"  this  will  authorize  the  agent  to 
receive  personal  property  from  the  debtor  in  satisfaction  of  the 
debt.  Oliver  v.  Sterling,  20  Ohio  St.  391.  Giving  power  to  re- 
ceive checks  instead  of  cash,  in  payment  of  bills  held  for  collec- 
tion, does  not  confer  authority  to  indorse  and  collect  the  checks. 
Graham  v.  United  States  Saving  Institution,  46  Mo.  186.  An 
authority  to  receive  the  amount  of  account,  or  to  receive  a  note 
for  it,  does  not  empower  the  agent  to  dispose  of  the  note.  Hays 
V.  Lynn,  7  Watts,  524.  So,  an  agent  who  is  employed-  to  sell 
property  upon  credit  has  no  implied  authority  to  foreclose  a 
mortgage  which  he  had  taken  to  secure  the  amount  at  a  future 
day;  nor  has  he  authority,  on  the  foreclosure  sale,  to  buy 
in  the  property  for  his  principal.  Aultman  v.  Jones,  1 
Woolw.  99.  So,  an  agent  employed  to  collect  or  receive  pay- 
ment of  a  demand  is  not  authorized,  on  a  part  payment  of 
the  sum  due,  to  extend  the  time  of  payment  of  the  balance. 
HutcMngs  v.  Munger,  41  N.  Y.  (2  Hand)  155.  Where  one  per- 
son assumes  to  act  for  another  as  agent,  it  is  immaterial  to  the 
question  of  agency,  so  far  as  third  persons  are  concerned, 
whether  he  acts  by  the  direction  and  request,  or  merely  by  the 
permission  of  the  principal,  for  he  is  equally  his  agent  in  either 
case.     Fay  v.  Richmond,  43  Vt.  25. 

§  3.  Authority,  when  limited.  It  is  a  maxim  of  the  law,  that 
general  words  may  be  aptly  restrained  according  to  the  subject- 
matter  or  persons  to  which  they  relate.  Broom's  Leg.  Max.  646. 
See  ante,  125,  ch.  2,  §  15. 

In  regard  to  the  extent  or  powers  of  an  agency,  the  law  will 
not,  from  mere  general  expressions,  infer  the  existence  of  un- 
usual or  extraordinary  powers,  but  will  restrain  them  to  the  clear 


AGENCY.  225 

and  obvious  intent  and  object  of  tbe  agency.  However  general 
the  language  may  be,  if  it  is  used  in  connection  v^^itli  some  par- 
ticular subject-matter,  the  presumption  will  be  that  the  language 
related  to  that  matter,  and  it  will  be  construed  and  limited  ac- 
cordingly. When  a  power  of  attorney  in  respect  to  specified 
lands,  authorizes  the  agent  to  sell  or  lease  them,  to  take  charge 
of  them,  to  demand  all  moneys  due,  or  to  grow  due,  upon  any 
contracts,  leases  or  securities,  to  prosecute  suits  for  his  principals 
in  respect  to  such  lands,  this  will  not  authorize  him  to  assign  a 
cause  of  action  for  a  trespass  upon  such  lands.  Oeiger  v.  Bolles^ 
1  N.  Y.  S.  C.  (T.  &  C.)  129.  So  a  power  of  attorney  "to  enforce, 
either  privately  or  before  court,"  a  specified  claim  of  a  certain 
amount,  and  to  do  every  thing  "which  may  be  requisite  to  collect 
such,  sum,"  does  not  confer  authority  upon  the  agent  to  assign 
the  claim  to  a  third  person.  Garrigue  v.  Loescher,  3  Bosw.  578, 
584. 

A  power  of  attorney  to  sell  "claims  and  effects  "  cannot  be 
construed  as  an  authority  to  sell  lands.  Cordona  v.  Knoioles,  37 
Tex.  19.  An  authority  to  sell,  transfer,  and  convey  lands,  does 
not  authorize  the  agent  to  exchange  them  for  other  property. 
Reese  v.  Medlock^  27  Tex.  120.  So  a  power  of  attorney  simply 
authorizing  the  agent  to  conduct  or  control  the  principal's  busi- 
ness affairs  during  his  absence,  does  not  authorize  the  agent  to 
sell  the  principal's  land.  Watson  v.  Hoplcins,  27  Tex.  637.  An 
agent  of  a  corporation  who  has  general  powers  to  settle  claims 
against* his  principal  is  not  impliedly  authorized  to  submit  them 
to  arbitration.  Michigan^  etc.,  R.  R.  Co.  v.  Gongar,  55  111.  503. 
A  verbal  authority  "to  sell,"  or  "to  close  a  bargain"  in  regard 
to  real  estate,  is  no  more  than  a  mere  authority  to  find  a  pur- 
chaser at  the  price  specified  ;  it  confers  no  power  upon  the  agent 
to  sign  the  name  of  his  principal  to  a  contract  of  sale.  Duffy  v. 
Hoi  son,  40  Cal.  240  ;  6  Am.  Rep.  617.  A  general  authority  to 
transact  business,  and  to  receive  and  discharge  debts,  does  not 
confer  upon  the  agent  a  power  to  accept  or  indorse  bills  so  as  to 
charge  his  principal.  Sewanee  Mining  Co.  v.  McCall,  3  Head 
(Tenn.),  619.  A  telegram  by  the  owner  of  a  vessel  which  is 
ashore,  in  the  following  words:  "  Send  me  a  small  tow-boat.  * 
*  *  Make  the  best  bargain  you  can,"  contemplates  the  hir- 
ing of  a  boat  already  manned  and  equipped,  and  in  the  absence 
of  proof  of  a  necessity  for  such  action,  or  evidence  of  a  custom 
or  usage  to  that  effect,  the  agent  will  not  be  authorized  to  assume 
on  behalf  of  the  principal  the  perils  of  the  service  or  the  risks 

Vol.  I. —29 


226  AGENCY. 

of  the  voyage,  or  to  insure  against  tlie  negligence  of  any  one 
employed  in  navigating  or  handling  the  boat.  Martin  v.  Farns- 
wortK  49  N.  Y.  (4  Sick.)  555. 

A  power  of  attorney  to  collect  debts ;  to  execute  deeds  of 
lands  ;  to  accomplish  a  complete  adjustment  of  all  the  concerns 
of  the  principal  in  a  specified  place-,  and  to  do  all  other  acts 
which  the  principal  could  do  in  person,  does  not  authorize  the 
agent  to  give  a  note  in  the  name  of  his  principal,  Rossiter  v. 
Rossiter,  8  Wend.  494;  Holtsinger  v.  National  Corn  Excliange 
Bank,  37  How.  203  ;  6  Abb.  (N.  S.)  292  ;  1  Sweeny,  64. 

A  general  agent  is  not  authorized  to  employ  attorneys  and 
counsel  on  the  credit  of  his  principal,  to  commence  and  prose- 
cute a  suit  in  favor  of  a  servant  of  the  principal,  for  a  personal 
injury  done  to  such  servant  while  in  the  service  of  the  principal. 
Cochran  v.  Neioton,  5  Denio,  482.  So  an  agent  of  a  stage  com- 
pany who  is  authorized  to  obtain  surgical  aid  for  a  passenger 
who  was  injured  by  the  upsetting  of  the  coach,  is  not  therefore 
authorized  to  employ  a  physician  to  attend  one  who  has  acted 
as  coachman,  without  the  consent  or  knowledge  of  the  company, 
and  who  had  also  been  injured  by  the  same  accident.  Shriver 
V.  Stevens,  12  Penn.  St.  258.  So  the  station-master  or  other 
agents  of  a  railroad  company  cannot,  without  express  authority, 
bind  the  company  by  contracts  for  surgical  attendance  upon  pas- 
sengers injured  by  an  accident  in  the  moving  of  the  trains.  Cox 
V.  Midland  Counties  Railway  Co.,  3  Exch.  268  ;  13  Jur.  65  ;  18 
L.  J.  Exch.  65. 

The  superintendent  of  a  railroad  who  has  a  general  supervis- 
ory control  over  the  whole  line  of  the  road,  and  of  every  thing 
connected  with  the  running  of  the  road,  and  of  the  payment  to 
drivers,  conductors,  and  other  persons  employed  by  him  as  su- 
perintendent, but  having  no  direction  over  the  treasury,  is  not 
authorized  to  bind  the  company  by  the  employment  of  a  physi- 
cian to  attend  upon  a  child  which  had  been  run  over  by  a  car 
and  severely  injured.  Stephenson  v.  New  York  &  Harlem  R.  R. 
Co.,  2  Duer,  341. 

But  in  England  it  has  been  held  that  the  general  manager  of  a 
railway  company  has,  as  incidental  to  his  employment,  author- 
ity to  bind  the  company  to  pay  for  surgical  attendance,  bestowed 
at  his  request,  on  a  servant  of  the  company  injured  by  an  acci- 
dent on  their  railway.  Walker  v.  Great  Western  Railway  Co., 
L.  R.,  2  Exch.  228. 
§  4.  Notice  of  extent  of  agent's  authority.    There  are  numer- 


AGENCY.  227 

ous  instances  in  which  a  party  dealing  with  an  agent  is  bound  to 
ascertain  the  extent  of  the  agent' s  authority,  or  to  submit  to  any 
loss  which  may  result  from  his  want  of  care.  A  naked  power  to 
do  acts  for  a  principal,  and  in  his  name,  negatives  all  authority 
on  the  part  of  the  attorney  to  act  for  the  benefit  of  any  one  but 
the  principal,  and  persons  dealing  with  the  attorney,  as  such,  are 
bound  to  notice  this  limitation.  Stainer  v.  Tysen,  3  Hill.  279  ; 
North  River  Bank  v.  Ayrnar,  id.  262 ;  Martin  v.  Farnsworth, 
49  N.  Y.  (4  Sick.)  555,  558  ;  Towle  v.  Leavitt,  23  N.  H.  360. 
Whenever  a  party  has  notice  that  an  agent  is  acting  under  a 
written  authority,  or  has  such  knowledge  as  ought  to  put  him 
upon  inquiry  as  to  the  extent  of  the  agent's  powers,  or  where  the 
agent  signs  his  name  as  such,  it  is  the  duty  of  the  party  dealing 
with  him  to  ascertain  whether  he  has  authority  to  act  for  the 
principal  in  the  manner  he  assumes  to  do.  lb.  ;  JDozier  v.  Free- 
man, 47  Miss.  647.  One  who  deals  with  an  agent,  acting  under 
an  express,  or  a  general  authority,  whether  written  or  verbal,  is 
bound  to  know,  at  its  peril,  the  power  of  such  agent,  and  its 
legal  effect.  Payne  v.  Potter,  9  Iowa,  549  ;  Beach  v.  Vandewater, 
1  Sandf.  265  ;  Hunt  v.  Chapin,  6  Lans.  139  ;  Baxter  v.  Lamont, 
60  111.  237;  Morris  v.  Watson,  15  Minn.  212.  Purchasers  of 
negotiable  paper,  issued  by  an  agent,  the  nature  and  extent  of 
whose  authority  must,  by  law,  appear  upon  the  face  of  public 
records,  are  chargeable  with  notice  of  whatever  appears  upon 
those  records.  Lewis  v.  Commissioners  of  Bourbon  County,  12 
Kans.  186.  So,  where  negotiable  paper  is  issued  by  a  government 
officer,  whose  powers  and  duties  are  limited  and  defined  by  laws, 
it  is  the  duty  of  one  who  takes  such  paper  to  ascertain  that  the 
officer  had  authority  to  make  or  issue  it.  The  Floyd  Acceptances, 
7  Wall.  (U.  S.)  666,  676,  677,  680. 

§  5.  Private  instructions  to  agent.  Instructions  from  a  princi- 
pal to  his  agent,  which  operate  as  private  restrictions  upon  a 
general  agency,  do  not  affect  persons  dealing  with  the  agent  in 
ignorance  of  them.  Johnson  v.  Jones,  4  Barb.  369  ;  Bryant  v. 
Moore,  26  Me.  84  ;  Davenport  v.  Peoria  Marine  &  Fire  Ins.  Co., 
17  Iowa,  276 ;  Cross  v.  HasJcins,  13  Vt.  536  ;  Hatch  v.  Taylor, 
10  N.  H.  538  ;  Cruzan  v.  Smith,  41  Ind.  288  ;  Cosgrove  v.  Ogden, 
49  N.Y.  (4  Sick.)  255  ;  S.  C,  10  Am.  Rep.  361 ;  Bradford y.  Bush, 
10  Ala.  386  ;  Ezell  v.  Franklin,  2  Sneed,  236  ;  Hunter  v.  Jame- 
son, 6  Ired.  252. 

Where  a  written  authority  is  known  to  exist,  or  by  the  nature 
of  the  transaction  is  presupposed,  it  is  the  duty  of  persons  who 


228  AGENCY. 

deal  with  the  agent  to  inquire  as  to  the  nature  and  extent  of  his 
authority ;  but  no  such  duty  exists  in  relation  to  any  private 
letter  of  instructions  from  the  principal  to  the  agent,  since  they 
may  be  presumed  to  be  of  a  confidential  nature,  not  intended  to 
be  disclosed  to  third  persons.  lb.  WitJiington  v.  Herring,  5  Bing. 
442;  Ifimn  v.  Commission  Co.,  15  Johns.  44. 

So,  where  a  written  authority  apparently  authorizes  the  act 
done  by  the  agent,  it  is  no  answer  to  the  principal's  liability  to 
show  that  the  agent  has  exceeded  his  real  authority.  Briden- 
hecTcer  v.  Lowell,  32  Barb.  9. 

Whether  the  authority  conferred  upon  an  agent  be  verbal  or 
written,  the  principal  will  be  bound  by  acts  within  the  apparent 
authority ;  and,  if  the  authority  is  inferred  from  acts  done  by 
the  agent,  the  principal  will  be  bound  by  such  acts  as  he  permits 
to  be  done  with  his  knowledge,  and  without  objection  on  his 
part,  so  far  as  they  affect  the  rights  of  innocent  third  persons.  St. 
Louis  &  Memphis  Packet  Co.  v.  Parlcer,  59  111.  23  ;  Fatman  v. 
Leet,  41  Ind.  133  ;  Kerslake  v.  Schoonmaker,  3  N.  Y.  S.  C.  (T.  & 
C.)  624 ;  1  Hun,  436  ;  Tucker  v.  Woolsey,  64  Barb.  142  ;  6  Lans. 
482 ;  PMladelpMa,  etc.,  R.  R.  Co.  v.  Weaver,  34  Md.  431  ; 
Bronson  v.  Chappell,  12  Wall.  (U.  S.)681 ;  Golding  v.  Merchant, 
43  Ala.  705. 

§  6.  Amlblguous  authority.  Every  authority  conferred  upon  an 
agent  ought  to  be  expressed  in  plain  and  explicit  terras  ;  for,  if 
the  language  is  ambiguous  or  obscure,  the  principal  will  be 
bound  by  the  rule  that  instruments  are  most  strongly  construed 
against  the  grantor  or  promisor,  ante,  124,  §  14.  So  it  is  a  univer- 
sal rule,  based  on  principles  of  policy,  propriety  and  justice,  that 
if  a  principal  puts  his  agent  in  a  condition  to  impose  on  innocent 
third  persons,  by  apparently  pursuing  his  authority,  he  shall  be 
bound  by  his  acts.  Dunning  v.  Roherts,  35  Barb.  463,  467 ; 
Dodge  v.  McDonnell,  14  Wis.  553  ;  Garrard  v.  Haddan,  67  Penn. 
St.  82  ;  S.  C,  5  Am,  Rep.  412  ;  Yan  Duzer  v.  Hoioe,  21  JST.  Y.  (7 
Smith)  531  ;  31  Barb.  100. 

§  7.  Usage  or  custom.  In  the  construction  of  contracts,  cus- 
tom or  usage  sometimes  has  an  important  influence,  ante,  127,  § 
20.  The  relation  of  principal  and  agent  is  a  voluntary  relation, 
springing  from  a  contract,  to  which  the  consent  of  the  parties  is 
essential.  Raney  v.  Wood,  3  Sandf.  577  ;  8  N.  Y.  Leg.  Obs.  182. 
And  when  a  question  arises  as  to  the  authority  or  power  of  an 
ao'ent  in  some  particular  transaction,  the  effect  which  usage  has 
in  such  case  may  be  of  the  highest  importance  in  determining 


AGENCY.  229 

the  rights  of  the  parties.  When  evidence  of  usage  is  admitted, 
it  is  not  received  for  the  purpose  of  enlarging  the  power  or 
authority  of  the  agent,  but  for  the  purpose  of  interpreting  the 
power  or  authority  which  has  actually  been  given.  And  when 
an  authority  is  conferred  upon  an  agent,  it  carries  with  it  the 
right  to  act  according  to  the  usual  customs  of  the  trade  or  busi- 
ness to  which  it  relates,  ante^  221,  §  2,  and  cases  there  cited ;  see, 
also,  ante^  127  ;  Custom.  One  who  employs  a  broker  to  transact 
business  for  him,  will  be  bound  by  the  customs  of  brokers, 
whether  he  knew  of  them  or  not.  WhiteJiouse  v.  Moore^  13  Abb. 
142;  Pollock  v.  Stables,  12  Q.  B  765  ;  Bayllffe  v.  BuUerworth.  1 
Exch.  425 ;  Sutton  v.  Tatham,  10  Ad.  «&  El.  27  ;  Northern,  etc.. 
Railway  Co.  v.  Bastian,  15  Md.  494 ;  see  1  Broom  &  Had.  48, 
49,  50,  etc.,  notes  to  Wait's  ed. 

The  custom,  however,  must  be  general,  or  it  will  not  be  bind- 
ing. And  where  a  usage  is  adopted  by  a  certain  class  of  factors, 
as  to  the  disposition  of  the  funds  of  their  principals,  this  will 
not  relieve  such  a  factor  from  a  duty  or  a  liability  which  the  law 
would  otherwise  impose  upon  him,  unless  he  shows  that  his 
principal  had  knowledge  of  such  usage,  or  that  he  assented  to 
that  mode  of  doing  business.  Farmers  &  Meclianics'' Nat.  Baiilc, 
etc.  V.  Sjjrague,  52  N.  Y.  (7  Sick.)  605  ;  Duguid  v.  Edwards,  50 
Barb.  288,  295 ;  Boardman  v.  GaiUard,  1  Hun,  217;  S.  C,  KY. 
S.  C.  (T.  &  C.)  695  ;  60  N.  Y.  (15  Sick.)  614. 

§  8.  Parol  evideuce  to  enlarge  authority.  It  is  a  general  rule 
that  an  express  power,  conferred  by  writing,  cannot  be  enlarged 
by  parol  evidence.  But  this  rule  is  applicable  to  those  cases  only 
in  which  the  whole  authoritj^  arises  exclusively  from  the  writing; 
and  where  the  parol  evidence  applies  to  the  same  subject-matter 
at  the  same  time,  and,  in  effect,  seeks  to  contradict,  vary,  or  con- 
trol the  written  instrument.  And  where  it  is  sought  by  parol  evi- 
dence to  establish  a  subsequent  enlargement  of  the  original 
authority,  or  to  give  an  authority  for  another  object,  or  where 
the  express  power  is  engrafted  on  an  existing  agency,  affecting 
it  only  to  a  limited  extent,  the  rule  does  not  apply.  Williams 
V.  Cochran.,  7  Rich.  Law  (S.  C),  45  ;  Hartford  Ins.  Co.  v.  Wilcox, 
67  111.  182.  If  an  agent  has  been  authorized  in  writing  to  buy 
specified  goods  at  a  fixed  price,  parol  evidence  may  be  given  to 
show  a  subsequent  parol  authority  to  purchase  other  goods  at  a 
different  price,  or  the  same  goods  at  a  different  price,  for  this 
would  not  contradict,  vary,  or  control  the  legal  construction  or 
effect  of  the  original  authority.    Story  on  Agency,  §  80. 


230  AGENCY. 

If  the  authority  be  in  writing,  and  this  is  known  by  the  party 
dealing  with  the  agent,  the  autliority  must  be  strictly  pursued, 
and  it  cannot  be  enlarged  by  evidence  of  usage.  Delafield  v.  8tate 
of  Illinois,  26  Wend.  192,  222  ;  S.  C,  2  Hill,  159;  8  Paige,  527  ; 
Hogg  V.  Snaith,  1  Taunt.  347. 

Where  an  express  authority  is  conferred  by  informal  instru- 
ments, such  as  letters  of  advice,  or  instructions,  or  loosely  drawn 
orders,  which  are  general  in  their  terms,  or  confer  a  general 
authority,  they  are  construed  with  more  liberality  than  more 
formal  and  deliberate  instruments.  Whart.  on  Agency,  §  226  ; 
Story  on  Agency,  §  84. 

§  9.  Acts  to  be  done  in  a  foreign  country  or  State.  An  author- 
ity to  an  agent  to  transact  business  for  his  principal,  in  a  foreign 
country,  or  in  another  State,  will,  in  the  absence  of  evidence  to 
the  contrary,  be  presumed  to  include  an  authority  to  transact  it 
in  the  forms,  by  the  instruments,  and  according  to  the  laws  of 
the  place  where  the  business  is  to  be  done.  Owings  v.  Hull,  9 
Peters,  607,  627.  And,  under  such  circumstances,  each  party  is 
bound  to  know  what  such  forms  and  instruments  are,  and  what 
acts  are  required  by  those  laws.  lb.  It  would  be  unreasonable 
to  presume  that  the  principal  authorized  the  end,  and  refused 
the  lawful  means  ;  or  that  he  intended  to  violate  the  laws,  or  to 
mislead  his  agent,  in  relation  to  his  powers.  lb.  See,  also,  Treat 
V.  Celts,  41  Cal.  202 ;  Neille  v.  United  States,  7  Ct.  of  Claims, 
635. 

§  10.  Extent  of  authority ;  how  far  implied.  When  an  agency 
arises  by  implication  and  presumption  from  the  facts  and  cir- 
cumstances of  the  case,  the  nature  and  extent  of  the  authority 
conferred  upon  the  agent  will  be  ascertained  and  limited  in  the 
same  manner,  and  be  governed  by  the  same  considerations  which 
control  in  the  construction  of  an  express  authority  which  is  con- 
ferred in  general  terms.  If  the  agency  arises  by  implication 
from  several  previous  acts  done  by  the  agent,  with  the  tacit  con- 
sent or  acquiescence  of  the  principal,  such  agency  will  be  limited 
to  acts  of  a  like  nature.  Cox  v.  Hoffman,  4  Dev.  &  Bat.  (N.  C.) 
180 ;  CJiidsey  v.  Porter,  21  Penn.  St.  390 ;  Stringham  v.  St 
Nicholas  Ins.  Co.,  4  Abb.  Ct.  App.  315  ;  3  Keyes,  280;  1  Trans. 
App.  334  ;  5  Abb.  (N.  S.)  80 ;  37  How.  365 ;  Oilbraith  v.  Linen- 
herger,  69  N.  C.  145;  Pliiladelpdia,  etc.,  R.  R.  Co.  v.  Weaver, 
34  Md.  431 ;  Commercial  Banlc  of  Lake  Erie  v.  Norton,  1  Hill, 
501. 

If  it  arises  from  the  employment  of  the  agent  in  a  particular 


AGENCY.  231 

business,  it  will,  in  like  manner,  be  limited  to  that  particular 
business.  8alem  Bank  v.  Gloucester  Bank,  17  Mass.  1  ;  Kerm  v. 
Piper,  4  Watts,  222  ;  Terry  v.  Fargo,  10  Johns.  114  ;  Gooley  v. 
Willard,  34  111.  69. 

The  authority  must  be  implied  from  facts  which  have  occurred 
in  the  course  of  such  employment,  and  not  from  mere  argument 
as  to  the  utility  and  propriety  of  its  possession  by  the  agent. 
Hawtayne  v.  Bourne,  7  Mees.  &  Wels.  695  ;  Burmester  v.  Nor- 
ris,  6  Exch.  796. 

If  the  agency  arises  from  an  authority  to  do  a  single  or  par- 
ticular act,  it  is  limited  to  the  appropriate  means  of  accomplish- 
ing that  very  act,  and  the  required  end,  and  it  extends  no  fur- 
ther. Howell  V.  Gordon,  40  Gra.  302  ;  Morris  v.  Watson,  15  Minn. 
212. 

In  brief,  an  implied  agency  is  never  construed  to  extend  be- 
yond the  obvious  purposes  for  which  it  is  apparently  created. 
Aultman  v.  Jones,  1  Woolw.  99  ;  Graham  v.  United  States  Sav- 
ings Institution,  46  Mo.  186. 

The  silence  of  a  party  may  sometimes  be  construed  as  an  au- 
thority to  do  an  act.  If  the  owner  of  goods  stands  by  and  vol- 
untarily, and  without  objection  on  his  part,  permits  another  to 
sell  them  as  his  own  to  a  purchaser  in  good  faith,  the  sale  will 
conclude  the  owner.  Thompson  v.  Blanchard,  4  N.  Y.  (4  Comst.) 
303.  See,  also,  Edgerton  v.  Thomas,  9  N.  Y.  (5  Seld.)  40  ;  Rora- 
hack  V.  Stebbins,  4  Abb.  Ct.  App.  100  ;  3  Keyes,  62 ;  33  How. 
278  ;  Pickard  v.  Sears,  6  Ad.  &  El.  469,  474. 

§  11.  Of  notice  to  agents.  It  is  the  duty  of  every  agent  to 
notify  his  principal  of  all  facts  which  come  to  his  knowledge,  if 
they  will  or  may  materially  affect  the  rights  or  interests  of  such 
principal.  The  law  presumes  that  an  agent  will  perform  this 
duty,  and  therefore  the  rule  is  conclusively  settled  that  the  prin- 
cipal knows  whatever  the  agent  knows  in  relation  to  the  business 
of  the  agency.  Sutton  v.  Dillaye,  3  Barb.  529  ;  Meehan  v.  For- 
rester, 52  N.  Y.  (7  Sick.)  277;  Ingalls  v.  Morgan,  10  N.  Y.  (6 
Seld.)  178,  184;  Hoveyy.  Blanchard,  13  N.  H.  145;  Smith  v. 
Water  Com.,  38  Conn.  208  ;  Philadelphia  v.  Lockhart,  73  Penn. 
St.  217 ;  Slater  v.  Irwin,  38  Iowa,  261. 

An  omission  by  an  agent  to  notify  his  principal  of  facts  com- 
ing to  his  knowledge  in  relation  to  the  business  of  the  agency, 
will  not  affect  the  liability  of  the  principal,  and  the  agent's 
knowledge  will  be  equally  as  binding  upon  the  principal  as 
though  he  had  notice,  and  the  rule  is  the  same  whether  the  omis- 


232  AGENCY. 

sion  of  the  agent  was  accidental  or  intentional.  Dillon  v. 
Anderson,  43  N.  Y.  (4  Hand)  232 ;  Bank  of  United  States  v. 
Davis,  2  Hill,  451,  461 ;  Homy  v.  Blanchard,  13  N.  H.  145  ;  Ross 
V.  Houston,  25  Miss.  591. 

In  several  of  the  cases  it  is  laid  down  that  the  notice,  to  be 
binding  upon  the  principal,  must  have  been  received  or  obtained 
by  the  agent  in  the  course  of  the  business  of  the  particular 
agency.  Westfield  BanTc  v.  Cornen,  37  N.  Y.  (10  Tiff.)  320  ;  S. 
C,  4  Trans.  A^Dp.  442  ;  Farmers  and  Citizens''  Bank  v.  Payne, 
25  Conn.  444,  449,  450  ;  United  States  Ins.  Co.  v.  Shriver,  3  Md. 
Ch.  381 ;  McCorriiick  v.  Wheeler,  36  111.  114, 121  ;  Congar  v.  Chi- 
cago &  Northwestern  R.  R.  Co.,  24  Wis.  157 ;  S.  C,  1  Am.  Rep. 
164  ;  Willis  V.  Yallette,  4  Mete.  (Ky.)  186. 

But  there  are  cases  which  hold  that  notice  to  an  agent  is  notice 
to  his  principal,  whether  acquired  by  the  agent  in  the  particular 
transaction,  or  acquired  by  him  in  a  prior  transaction,  and  pres- 
ent in  his  mind  at  the  time  he  is  acting  as  agent,  if  the  knowledge 
is  of  such  a  character  that  he  may  communicate  it  to  his  princi- 
pal without  a  breach  of  professional  coniidence.  The  Distilled 
Spirits,  11  Wall.  (U.  S.)  356,  366 ;  Hart  v.  Farmers  and  Me- 
chanics'' Bank,  33  Yt.  252  ;  Patten  v.  Merchants  and  Farmers' 
Mutual  Fire  Ins.  Co.,  40  N.  H.375  ;  Dresser  v.  Norwood,  17  C.  B. 
(N.  S.)  466,  482-482  d,  note. 

Where  there  are  several  joint  agents,  notice  to  one  of  them  is 
equally  notice  to  the  principal.  Bank  of  United  States  v.  Dams, 
2  Hill,  451,  464. 

§  12.  Powers  on  extraordinary  occasions.  Although,  as  a  gen- 
eral rule,  an  agent  is  required  to  conform  to  his  instructions,  or 
authority,  yet  there  may  be  instances  in  which  a  strict  and  lit- 
eral adherence  to  their  terms  would  defeat  the  object  of  the 
agency.  There  may  arise  such  new  and  unexpected  emergencies 
and  necessities  as  will  justify  the  agent  in  assuming  extraordin- 
ary powers,  which,  if  done  in  good  faith,  and  with  sound  discre- 
tion, will  bind  the  principal.  Lawlor  v.  Keaquick,  1  Johns.  Cas. 
175,  179,  n.;  Judson  v.  Sturges,  5  Day,  556,  560 ;  Forrester  v. 
Boardman,  1  Story,  43  ;  Liotard  v.  Graves,  3  Caines,  226 ;  Wil- 
liams V.  Shackelford,  16  Ala.  318  ;  Gould  y.  Ric7i, 7  Mate.  (Mass.) 
556  ;  Greenleaf  v.  Moody,  13  Allen,  362. 

§  13.  Ratification  of  assumed  authority.  Where  a  principal, 
with  a  full  knowledge  of  all  the  facts  and  circumstances  of  the 
case,  deliberately  ratifies  or  acquiesces  in  the  acts  or  omissions 
of  his  agent,  he  will  be  bound  as  fully  as  though  he  had  given 


AGENCY.  233 

a  previous  authority  in  relation  to  the  acts  or  omissions.  Kelsey 
V.  National  Bank  of  Craioford,  69  Penn.  St.  426 ;  Gulick  v.  Gro- 
ver,  33  N.  J.  L.  (4  Vr.)  463 ;  Drakely  v.  Gregg,  8  Wall.  242 ; 
Vincent  v.  Rather,  31  Tex.  77 ;  Hawletj  v.  Keeler,  53  N.  Y.  (8 
Sick.)  114. 

But  to  render  a  ratification  binding  upon  a  principal,  it  must 
be  made  or  founded  upon  a  full  knowledge  of  all  the  material 
facts  and  circumstances  affecting  his  interests.  Pittsburgli,  etc., 
R.  R.  V.  Gazzam,  32  Penn.  St.  340  ;  Combs  y.  Scott,  12  Allen, 493; 
Planning  v.  Gasharie,  27  Ind.  399 ;  HumpJireys  v.  Havens,  12 
Minn.  298. 

The  ratification  must  be  entire,  or  not  at  all ;  the  principal  is 
not  permitted  to  ratify  in  part,  and  to  reject  in  part.  Southern 
Exp.  Co.  V.  Palmer,  48  Ga.  85  ;  Cochran  v.  Chitwood,  59  111.  53 ; 
Widner  v.  Lane,  14  Mich.  124 ;  Krider  v.  Western  College,  31 
Iowa,  547;  Billings  v.  Morrow,  7  Cal.  171 ;  Hardeman  v.  Ford, 
12  Ga.  205  ;  Menkens  v.  Watson,  27  Mo.  163  ;  Henderson  Y.Cum- 
mings,4:4:  111.  325  ;  ColemaJiv.  Stark,  1  Oregon,  115.  A  ratification 
of  a  part  of  an  unauthorized  transaction  of-an  agent,  or  of  one  who 
assumes  to  act  as  such,  is  a  confirmation  of  the  whole.  Partners'' 
Loan  and  Trust  Co.  v.  Walworth,!  N.  Y.  (1  Comst.)  433  ;  Fowler 
V.  Trull,  1  Hun,  409;  S.  C,  3  N.  Y.  S.  C.  (T.  &  C.)  522  ;  Krider 
v.  Western  College,  31  Iowa,  547;  Menkens  v.  Watson,  27  Mo.  163. 

A  ratification  by  a  person  of  an  act  done  in  his  behalf,  by 
another  without  authority,  if  made  under  a  misapprehension 
or  in  ignorance  of  the  full  scope  of  the  act,  is  voidable  to  the  ex- 
tent of  the  mistake.  Miller  v.  Board  of  Education  of  Sacra- 
mento, 44  Cal.  166  ;  Smith  v.  Tracy,  36  N.Y.  (9  Tiff.)  79;  3  Trans. 
App.  345  ;  Lester  v.  Kinne,.  37  Conn.  9. 

A  person  cannot  ratify  acts  done  without  his  authority,  unless 
they  were  done  for  him  by  one  who  assumed  to  be  his  agent. 
Condit  V.  Baldwin,  21  N.  Y.  (7  Smith)  219,  225 ;  Watson  v. 
Swann,  11  C.  B.  (N.  S.)  755  ;  Wilson  v.  Tumman,  6  Man.  &  Grang. 
236;  Farmers^  Loan  and  Trust  Co.  v.  Walworth,  1  N.Y.  (1  Comst.) 
433,  444 ;  Commercial  Bank  v.  Jones,  18  Tex.  811.  This  principle 
might,  perhaps,  exclude  the  ratification  of  a  forged  signature  to 
a  note.  Brook  v.  Hook,  L.  R.,  6  Exch.  89.  But  in  this  country  a 
party  may  ratify  a  forged  signature  of  his  name.  Forsyth  v. 
Lay,  46  Me.  176;  Union  Bank  Y.Middlehrook,  33  Conn.  95 ; 
Greenfield  Bank  v.  Crafts,  4  Allen,  447  ;  Howard  v.  Duncan,  3 
Lans.  174  ;  Livings  v.  Wiler,  32  111.  387 ;  Fitzpatrick  v.  School 
Commissioners,  7  Humph.  224. 

Vol.  I;— 30 


234  AGENCY. 

The  act  of  an  agent  may  be  presumed  to  have  been  ratified  by 
his  principal  when  the  acts  and  conduct  of  the  latter  are  incon- 
sistent with  any  other  supposition,  as  where  he  receives  and  liolds 
the  fruits  of  the  agent's  act.  Maddux  y.  Bexan,  39  Md.  485  ; 
Ketchum  v.  Verdell,  42  Ga.  534;  Williams  v.  Storm,  6  Coldw. 
203;  Ballston  Spa.  BanJcv.  Marine  BanTc,  16  Wis.  120;  Wood- 
bury V.  Laund,  5  Minn.  339;  Exum  v.  Brister,  35  Miss.  391;  Hall 
v.  Harper,  17  111.  82. 

A  ratification  once  deliberately  made,  upon  full  knowledge  of 
all  the  material  facts,  becomes  at  once  obligatory,  and  cannot 
afterward  be  revoked  or  recalled.  Claris  Exrs.  v.  Van  Reims- 
dyck,  9  Cranch,  153 ;  Breck  v.  Jones,  16  Texas,  461 ;  Hazelton 
V.  Batohelder,  44  N.  H.  40.;  Bell  v.  Byerson,  11  Iowa,  233. 

A  principal,  who  is  informed  of  an  unauthorized  act  done  by 
his  agent,  must  give  notice  of  his  dissent  within  a  reasonable 
time,  or  his  assent  and  ratification  will  be  presumed.  Cairnes 
V.  Bleecker,  12  Johns.  300;  Jerms  v.  Hoyt,  2  Hun,  637;  S.  C,  5 
N.  Y.  S.  C.  (T.  &  C.)  199;  Johnson  v.  Wingaie,  29  Me.  404;  Clay 
V.  Spratt,  7  Bush  (Ky.),  334;  Farwell  v.  Howard,  26  Iowa,  381; 
Law  V.  Cross,  1  Black.  (U.  S.)  533;  Williams  v.  Merritt,  23  111.  623. 

A  subsequent  ratification  relates  back  to  the  time  of  the  origi- 
nal transaction.  Lowry  v.  Harris,  12  Minn.  255;  Lawrence  v. 
Taylor,  5  Hill,  107;  Hawkins  v.  Baker,  46  N.  Y.  (1  Sick.)  666, 
670;  Forsyth  v.  Day,  46  Me.  176. 

"Where  the  act  of  the  agent  is  done  in  the  name  of  the  princi- 
pal by  an  instrument  which  is  required  by  law  to  be  under  seal, 
there  the  ratification,  to  be  valid,  must  also  be  under  seal.  Blood 
v.  Goodrich,  12  Wend.  525;  9  Wend.  68;  Worrall  v.  Munn,  5 
N.  Y.  (1  Seld.)  229;  Boyd  v.  Bolson,  5  Humph.  37. 

If  an  agent  unnecessarily  afiixes  a  seal  to  an  instrument  which 
is  not  required  by  law,  it  niay  operate  as  an  unsealed  instrument, 
and,  of  course,  the  ratification  need  not  be  sealed.  Worrall  v. 
Munn,  5  N.  Y.  (1  Seld.)  229;  Ledbetter  v.  Walker,  31  Ala.  175; 
Bates  V.  Best,  13  B.  Monr,  215 ;  Dispatch  Line  of  Packets  v. 
Bellamey  Manuf.  Co.,  12  N.  H.  205,  232 ;  Cooper  v.  Rankin,  5 
Binn.  613. 

Before  a  ratification  can  be  binding,  the  principal  must  have 
an  opportunity  for  election  and  action.  Walters  v.  Munroe,  17 
Md.  150;  Robinson  y.  Cliapline,  QlovfSi,  91;  DupontY.Wertlier- 
man,  10  Cal.  354. 

§  14.  Agent's  declarations  do  not  prove  authority.  An  agency 
cannot  be  established  by  t]ie  declarations  or  the  acts  of  one  who 


AGENCY.  235 

assumes  to  be  an  agent.  Streeter  v.  Poor,  4  Kans.  412;  Perkins 
V.  StebHns,  23  Barb.  623;  Stringham  v.  St.  Nicholas  Ins.  Co., 
4  Abb.  Ct.  App.  315;  1  Trans.  App.  334;  3  Keyes,  280;  5  Abb. 
(N.  S.)  80;  37  How.  365;  McPougald  v.  Pawson,  30  Ala.  553 ; 
Scarhorough  v.  Meynolds,  12  id.  252. 

ARTICLE  Y. 

OF  THE   DUTIES   OF  AGENTS. 

Section  1.  In  general.  An  agent  ought,  as  far  as  possible,  to 
represent  his  principal;  and  to  the  best  of  his  ability  he  should 
endeavor  to  successfully  accomplish  the  object  of  the  agency. 
If  he  possesses  skill  and  experience  he  is  expected  and  required 
to  use  them  in  the  discharge  of  his  duties  ;  and,  for  inexcusable 
negligence  or  want  of  skill,  he  will  be  personally  liable  to  his 
principal,  if  he  suffers  loss  in  consequence.  It  is  also  his  duty 
to  be  well  informed  in  relation  to  the  transactions  which  occur 
during  the  execution  of  the  agency,  and  further  to  keep  his 
principal  fully  and  promptly  informed  of  all  material  facts  or 
circtimstances  which  come  to  his  knowledge.  And,  since  he  is 
expected  to  represent  his  principal,  he  cannot  have  a  personal 
interest  adverse  to  the  interest  of  his  principal;  and  if  he  deals 
with  the  subject-matter  of  the  agency,  the  profits  will,  as  a  gen- 
eral rule,  belong  to  the  principal,  and  not  to  himself.  He  is 
limited  to  the  discharge  of  his  duties  in  person,  unless  his  au- 
thority expressly  or  impliedly  gives  him  power  to  employ  an 
assistant  or  substitute,  or  unless,  in  extraordinary  emergencies, 
it  may  be  absolutely  necessary.  In  all  things  he  is  required  to 
exercise  a  sound  discretion,  and  to  act  in  entire  good  faith 
toward  his  principal.  These  general  views  will  be  further  ex- 
plained, and  sufficient  authorities  cited  during  the  course  of  this 
chapter. 

§  2.  Agent  must  act  in  person.  It  is  almost  universally  true 
that  the  employment  and  trust  are  personal  to  the  agent,  they 
usually  rest  upon  some  personal  ground  of  confidence  in  the 
integrity,  ability,  skill  or  experience  of  the  agent,  to  whose  hands 
the  principal  may  be  willing  to  confide  or  intrust  his  business, 
while  he  might  not  have  any  such  confidence  in  the  person  to  whom 
the  agent  might  intrust  it,  if  he  had  the  legal  authority  to  do  so. 
This  rule,  however,  is  not  carried  so  far  as  to  prevent  an  agent 
from  employing  such  assistance  as  he  may  need  in  executing  the 
duties  of  his  trust.    It  is  the  integrity,  the  intelligence,  skill,  or 


236  AGENCY. 

experience  of  the  agent  employed  by  the  principal,  which  the 
law  requires  to  be  exercised  by  the  agent  himself.  An  agent 
cannot  delegate  any  portion  of  his  power  requiring  the  exercise 
of  discretion  or  judgment;  but  it  is  otherwise,  however,  as  to 
powers  or  duties  which  are  merely  mechanical  in  their  nature. 
And,  therefore,  if  an  agent  is  empowered  to  bind  his  principal, 
by  an  accommodation  acceptance,  he  may  direct  another  to  write 
it,  he  himself  having  first  determined  the  propriety  of  the  act ; 
and  though  the  acceptance  name  the  delegate,  and  not  the  agent 
as  the  person  exercising  the  power,  it  will,  nevertheless,  bind  the 
principal.  Commercial  Bank  of  Lake  Erie  v.  Norton,  1  Hill,  501; 
Weeks  v.  Fox,  3  N.  Y.  S.  C.  (T.  &  C.)  354 ;  Williams  v.  Woods, 
16  Md.  220 ;  Ex  parte  Sutton,  1  Cox,  84 ;  but  see  Blore  v.  Sut- 
to?i,  3  Meriv.  237 ;  Henderson  v.  Barnwall,  1  Y.  &  Jerv,  387. 

It  is  very  clear,  however,  that  a  bare  authority  or  power  con- 
ferred by  a  principal  upon  an  agent  must  be  executed  b}^  the 
latter  in  person,  and  that  he  cannot  delegate  his  authority  to 
another.  lb.  Unless  from  the  express  language  used,  or  from 
the  fair  presumption  growing  out  of  the  particular  transaction, 
or  of  the  usage  of  trade,  a  broader  power  is  conferred,  an  agent's 
authority  is  exclusively  personal,  without  the  right  of  substitu- 
tion. Smith  V.  Suhlett,  28  Tex.  163  ;  Lynn  v.  Burgoyne,  13  B. 
Monr.  400  ;  Lewis  v.  Ingersoll,  3  Abb.  Ct.  App,  55  ;  1  Keyes, 
847 ;  Bocock  v.  Pavey,  8  Ohio  St.  270. 

§  3.  As  to  the  mode  of  executing  the  authority.  An  agent 
ought,  as  a  general  rule,  to  transact  the  business  of  the  agency 
in  the  name  of  his  principal.  Dennison  v.  Story,  1  Oregon,  272 ; 
fencer  v.  Field,  10  Wend.  87. 

It  is,  however,  in  relation  to  written  instruments,  that  this  rule 
is  applied  with  greater  strictness  ;  and,  it  is  a  general  rule,  sub- 
ject to  exceptions  and  qualifications,  that  a  written  instrument 
must  purport  upon  its  face  to  be  the  act  of  the  principal,  by 
inserting  his  name  in  the  body,  and  signing  it  at  the  end  of  the 
instrument,  so  as  to  show  that  the  principal  intends  to  be  bound 
by  it.  The  proper  mode  of  executing  an  authority  by  an  agent 
is  to  do  it  in  the  name  of  the  principal  or  person  giving  the 
authority,  and  not  in  the  name  of  the  agent.  Thus,  where  A  is 
the  principal,  and  B  is  the  agent,  the  latter  should  execute  the 
paper  by  signing  li  A,  by  B,  his  agent. 

It  is  in  reference  to  the  execution  of  sealed  instruments  that 
the  rule  is  most  strictly  enforced;  and,  a  sealed  instrument, 
when  executed  by  one  acting  as  an  agent  or  attorney,  must  be 


AGENCY.  237 

executed  in  the  name  of  the  principal,  and  purport  to  be  sealed 
with  his  seal,  or  the  person  named  as  principal  will  not  be  bound 
by  it.  Townsend  v.  Hubbard,  4  Hill,  351 ;  Clarice  v.  Courtney,  5 
Peters,  319,  351  ;  Elwell  v.  Shaw,  16  Mass.  42 ;  §  1,  Greenl. 
(Me.)  339  ;  Martin  v.  Flowers,  8  Leigh  (Va.),  158  ;  Skinner  v. 
Gunn,  9  Port.  (Ala.)  305  ;  Brinley  v.  Mann,  2  Cush.  (Mass.) 
337 ;  Fire  Ins.  Co.  v.  Doll,  35  Md.  89 ;  Heed  v.  Latham,  40 
Conn.  452  ;  Orubles  v.  Wiley,  9  Sm.  &  Marsh.  29 ;  Einstein  v. 
Holt,  52  Mo.  340. 

There  is  no  technical  mode  of  executing  an  instrument,  even 
when  under  seal,  which  is  so  strictly  applied  as  to  prevent  a  clear 
and  substantial  compliance  with  its  spirit  from  being  sufficient. 
For,  while  the  correct  mode  of  signature  would  be  "A  B  by 
his  attorney,  C  I),"  it  will  be  sufficient  if  signed  "For  A  B  "  (the 
principal),  ''C  D  "  (the  agent).  Under  such  circumstances,  if 
the  preceding  contract  or  obligation  be  in  the  name  of  the  prin- 
cipal, the  order  of  the  words  is  not  material,  since  the  deed  pur- 
ports on  its  face  to  be  the  deed  of  the  principal ;  and  the  inten- 
tion is  to  execute  it  in  his  name,  and  as  his  deed.  Wilks  v.  BacTc, 
2  East,  142;  Mussey  v.  Scott,  7  Cush.  (Mass.)  216  ;  Wilhurn  v. 
LarJcin,  3  Blackf.  65  ;  Martin  v.  Almond,  25  Mo,  313  ;  Hunter 
V.  Miller,  6  B.  Monr.  612. 

If,  however,  the  instrument,  in  the  granting  part  of  it,  be  in  the 
name  of  the  agent  only,  it  will  not  become  the  deed  of  the  prin- 
cipal by  being  signed  and  sealed  "CD,  attorney  to  A  B," 
Copeland  v.  Mercantile  Ins.  Co.,  6  Pick.  198,  203  ;  Martin  v. 
Flowers,  8  Leigh  (Va.),  158  ;  Townsend  v.  Hubbard,  4  Hill,  351; 
Squier  v.  Norris,  1  Lans.  282,  and  cases  cited ;  Briggs  v.  Part- 
ridge, 7  J.  &  Sp.  339. 

The  strictness  observed  in  relation  to  the  execution  of  sealed 
instruments  is  not  generally  enforced  as  to  writings  not  under 
seal ;  and  the  general  rule  is,  that  if  the  name  of  the  principal 
appears  in  the  instrument,  and  the  intention,  on  the  whole,  be 
apparently  to  bind  him,  he  will  be  the  party  bound,  if  the  agent 
had  due  authority  for  that  purpose,  even  though  the  instrument 
be  signed  in  the  agent's  name  only.  Townsend  v.  Hubbard,  4 
Hill,  351,  357 ;  E-Gans  v.  Wells,  22  Wend.  324 ;  PincTcney  v. 
Hagadorn,  1  Duer,  89  ;  14  N.  Y.  (4  Kern.)  590  ;  New  England 
Marine  Ins.  Co.  v.  De  Wolf,  8  Pick.  56-63  ;  Andrews  v.  Estes, 
11  Me.  267  ;  Farmers  and  Mechanics'  BanTc  v.  Troy  City  Bank, 
1  Doug.  (Mich.)  458,  467 ;  Robertson  v.  Pope,  1  Rich.  (S.  C)  501. 

But  a  contract,  although  made  and  signed  by  a  duly  author- 


238  AGENCY. 

ized  agent,  is  not  binding  upon  tlie  principal,  wliere  the  contract 
does  not  refer  to  Mm,  and  is  not  signed  in  liis  name.  Squier  v. 
Norris^  1  Lans.  282  ;  Wood  v.  Goodridge^  6  Cush.  (Mass.)  117 ; 
Minard  v.  Head,  7  Wend.  68  ;  Galuslia  v.  Hitchcock,  29  Barb. 
193  ;    Bartlett  v.  Tucker,  104  Mass.  336  ;  S.  C,  6  Am.  Rep.  240. 

In  regard  to  commercial  contracts  and  paper,  which  are  fre- 
quently drawn  up  in  a  loose  and  inartificial  manner,  a  more 
liberal  rule  prevails  ;  and,  in  cases  of  that  nature,  if  it  can  col- 
lect from  the  whole  instrument  that  the  intention  was  to  bind  the 
principal,  and  not  to  bind  the  agent,  the  courts  will  adopt  that  con- 
struction of  it,  however  informally  such  intention  may  have  been 
expressed.  Bahcock  y.  Beman,  11  N.  Y.  (1  Kern.)  200;  Bank 
of  Genesee  v.  Patchin  Bank,  19  IN".  Y.  (5  Smith)  312  ;  Long  v. 
Oolburn,  11  Mass.  97  \  Rice  v.  Gove,  22  Pick.  158  ;  Raskins  v. 
Edwards,  1  Iowa,  429  ;  Key  v.  Parnham,  6  Harr.  &  J.  418 ; 
Means  v.  Swormstedt,  32  Ind.  87 ;  S.  C,  2  Am.  Rep.  330,  332, 
333,  n. 

If  a  person  is  acting  as  a  mere  agent,  and  he  would  avoid  a 
personal  liability  upon  the  instrument  signed  by  him,  he  must 
be  careful  that  the  instrument  shows  clearly  on  its  face  that  he 
is  acting  as  an  agent  on  behalf  of  the  named  principal;  for,  if 
he  signs  in  any  other  character,  he  will  assume  a  personal  lia- 
bility, and  the  descriptive  words  will  be  treated  as  a  mere 
description  of  the  person  signing.  Forster  v.  Fuller,  6  Mass.  58; 
Simonds  v.  Heard,  23  Pick.  120;  Savage  v.  Rix,  9  N.  H.  263; 
Fogg  v.  Virgin,  19  Me.  352;  Brocliway  v.  Allen,  17  Wend.  40 ; 
Be  Witt  V.  Walton,  9  N.  Y.  (5  Seld.)  571;  Cleaveland  v.  Stewart, 
3  Kelly,  283 ;  Trask  v.  Roberts,  1  B.  Monr.  201. 

Where  a  contract  is  made  by  a  person  who  describes  himself 
as  an  officer  of  some  corporation  or  institution,  such  as  presi- 
dent, cashier,  trustee,  or  the  like,  it  cannot  in  all  cases  be  de- 
termined from  that  descriptive  title  alone,  whether  the  act  is  on 
a  "personal,  or  an  official  account,  and  the  question  must  be 
decided  upon  the  form  of  the  contract,  or  from  extrinsic  circum- 
stances. 

The  rule  as  to  the  admission  of  parol  evidence  of  extrinsic 
circumstances  has  been  stated  thus  :  "  Where  the  names  of  both 
principal  and  agent  appear  on  the  instrument,  and  the  contract, 
though  in  the  name  of  the  agent,  discloses  a  reference  to  the 
business  of  the  principal,  so  that  the  instrument,  as  it  stands,  is 
consistent  with  either  view,  of  its  being  the  engagement  of  the 
principal  or  of  the  agent,  parol  evidence  is  admissible  in  a  suit 


AGENCY.  239 

against  the  agent  to  charge  iiim  by  showing  either  that  credit 
was  given  to  him,  or  that  he  had  not  authority  to  bind  the  prin- 
cipal by  that  contract,  which  would  create  a  consideration  for  a 
liability  on  his  part,  or  to  discharge  him  by  proving  that  the  con- 
sideration passed  directly  to  his  principal,  as,  that  credit  having 
been  given  to  the  principal  alone,  the  consideration  of  the  note 
signed  by  hjm  was  an  antecedent  liability  on  the  part  of  the 
principal,  and  that  the  other  party  knew  that  he  acted  as  agent, 
and  thus  destroying  all  consideration  for  a  liability  on  his  part; 
and  in  like  manner,  to  charge  or  discharge  the  principal  by 
similar  circumstances."  1  Am.  Lead.  Cas.  (683),  763,  764  ;  Me- 
chanics' Banli  V.  Bank  of  Columbia,  5  Wheat.  326;  Baji/i  of 
Utica  V.  MagJier,  18  Johns.  341 ;  Stanton  v.  Camp,  4  Barb.  274; 
Bandallv.  Snyder,  1  Lans.  163;  UnderMllY.  Gibson,  2  IST.  H. 
352 ;  Wyman  v.  Gray,  7  Harr.  &  J.  409;  Lazarus  v.  Shearer,  2 
Ala.  719;  Cleaveland  v.  Stewart,  3  Kelly,  283,  297;  Kean  v. 
Davis,  1  Zabr.  (N.  J.)  683 ;  Taylor  v.  Williams,  17  B.  Monr. 
489;  Sayre  v.  Nichols,  7  Cal.  53. 

But,  if  the  name  of  the  principal  does  not  appear  in  the  in- 
strument, and  the  instrument  is  without  ambiguity,  and  asserts 
a  positive  liability  on  the  part  of  the  person  contracting,  parol 
evidence  to  bind  the  principal,  or  to  discharge  the  agent,  is  not 
admissible.  Fenlyv.  Stewart,  5  Sandf.  101,  109;  Savagev.Rix, 
9  N.  H.  263,  270  ;  BanTc  of  British  North  America  v.  Hooper,  5 
Gray,  567  ;  Bartlett  v.  Tucker,  104  Mass.  386  ;  S.  C,  6  Am.  Rep. 
240;  Nash  v.  Towne,  5  Wall.  689,  703. 

Though  it  has  been  held,  that,  in  such  a  case,  parol  evidence  is 
admissible  to  charge  the  principal,  but  not  to  discharge  the 
agent  from  liability.  Coleman  v.  First  National  BanTc  of  El- 
mira,  53  N.  Y.  (8  Sick.)  388,  393;  Ford  v.  Williams,  21  How.  (U. 
S.)  287;  Nash  v.  Towne,  5  Wall.  703;  Big  gins  v.  Senior,  8  M.  & 
W.  834;  see  9  Eng.  Rep.  16,  Moak's  note;  Whart.  on  Agency,  § 
298. 

§  4.  Agency  coupled  with  an  interest.  Notwithstanding  the 
general  rule,  that  an  agent  ought  to  make  contracts  in  the  name 
of  his  principal ;  or  to  show  who  is  the  principal,  and  that  he 
acts  as  agent ;  there  are  cases  in  which  the  agent  may  act  and 
enter  into  contracts  in  his  own  name.  If  the  agency  is  one  in 
which  the  agent  has  an  interest,  it  survives,  and  the  contracts  in 
relation  to  it  may  be  executed  in  the  name  of  the  agent  after  the 
death  of  the  principal.  Hunt  v.  Rousmanier''  s  Admrs.,  8  Wheat. 
174,  202,  206  ;  S.  C,  2  Mason,  244  ;  3  id.  294  ;  1  Peters,  1 ;  Taylor 


240  AGENCY. 

V.  Benham,  5  How.  (U.  S.)  233,  267,  268,  269.  See  Factors;  Revo- 
cation, etc. 

§  5.  Agent  must  act  within  the  scope  of  his  authority.  Al- 
though an  agent  may  employ  the  usual  and  necessary  means  of 
carrying  the  agency  into  eifect  {ante,  221,  §  2),  this  rule  is  limited 
by  the  principle  that  the  acts  done  are  within  the  scope  of  the 
authority  conferred  upon  him  by  the  principal.  And,  if  the  act 
substantially  varies  from,  or  exceeds,  the  authority,  in  nature, 
extent,  degree,  or  legal  effect,  it  will  not  bind  the  principal. 
Dozier  v.  Freeman,  47  Miss.  647.  An  authority  to  sign  a  note 
for  two  hundred  and  fifty  dollars,  at  six  months,  is  not  well  exe- 
cuted by  signing  the  principal's  name  to  a  note  for  that  sum,  at 
sixty  days,  and  he  will  not  be  bound  by  it.  Batty  v.  Car  swell, 
2  Johns.  48  ;  Tate  v.  Evans,  7  Mo.  419.  So  an  authority  to  ac- 
cept a  bill  of  exchange  for  two  thousand  dollars,  to  be  used  for 
a  particular  purpose,  is  not  binding  if  the  bill  is  accepted  for  a 
part  of  that  amount,  to  be  used  for  another  purpose.  Nixon  v. 
Palmer,  8  N.  Y.  (4  Seld.)  398. 

An  authority  to  bargain  and  sell  lands  does  not  authorize  the 
agent  to  permit  the  purchaser  to  enter  and  cut  timber  before  the 
execution  of  a  conveyance  of  the  lands.  Hubhard  v.  Elmer,  7 
Wend.  446.  An  authority  to  sell  a  horse,  or  to  exchange  it  for 
another  horse  fit  for  staging,  does  not  render  the  principal 
liable  upon  a  warranty  made  by  the  agent  upon  an  exchange  of 
the  horse  for  a  span  of  ponies  not  fit  for  staging.  Scott  v.  Mc- 
Grath,  7  Barb.  53. 

The  cases  upon  this  subject  are  very  numerous,  and  they  meet 
nearly  all  questions  that  may  arise.  See,  also,  ante,  221,  and  1 
Am.  Lead.  Cas.  680-688  (5th  ed.).  The  powers  of  a  special  agent 
are  limited  by  the  terms  in  which  they  are  conferred,  and  must 
be  strictly  pursued.  Martin  v.  Farnsworth,  49  N.  Y.  (4  Sick.) 
mo  ;  Hoffman  v.  Treadwell,  2  N.  Y.  S.  C.  (T.  &  C.)  57.  But  they 
must  be  construed  according  to  the  spirit  as  well  as  the  letter. 
Taylor  v.  Harlow,  1 1  Barb.  232. 

§,6.  What  diligence  and  skill  required.  As  a  contract  of 
agency  is  one  for  the  benefit  of  both  parties,  an  agent  is  under- 
stood to  contract  for  reasonable  skill  and  ordinary  diligence,  and 
for  injuries  caused  to  his  principal  by  the  want  of  such  skill,  or 
by  reason  of  a  want  of  ordinary  care,  he  will  be  liable.  Red- 
field  V.  Davis,  6  Conn.  442  ;  Burrill  v.  Phillips,  1  Gall.  360-363  ; 
Leverick  v.  Meigs,  1  Cow.  645  ;  KempJcer  v.  RoMyer,  29  Iowa, 


AGENCY.  241 

274  ;  Huff  v.  Batch,  2  Dis.  (Ohio)  63  ;  Ifyles  v.  Ifyles,  6  Bush 
(Ky.),  237. 

By  reasonable  skill  is  understood  such  skill  as  is  ordinarily 
possessed  and  employed  by  persons  of  common  capacity,  wlio  are 
engaged  in  the  same  trade,  business  or  employment.  Hoioard  v. 
Grover,  28  Me.  97 ;  Smothers  v.  Hanks,  34  Iowa,  286 ;  McCand- 
less  V.  3£c  Wha,  22  Penn.  St.  261 ;  Slmonds  v.  Henry,  39  Me. 
155  ;  Evans  v.  Watrous,  2  Port.  (Ala.)  205;  C  Barr  v.  Alexander, 
37  Ga.  195  ;  Stevens  v.  Walker,  65  111.  151. 

By  ordinary  diligence  is  meant  that  degree  of  diligence  which 
persons  of  common  prudence  ordinarily  use  in  their  own  busi- 
ness, or  in  the  same  employment  or  profession.  Oass  v.  Boston 
&  Lowell  R.  R.  Co.,  14  Allen,  448;  Lichtenheim  v.  Boston  & 
Providence  R.  R.  Co.,  11  Gush.  70  ;  Parke  v.  Lowrie,  6  Watts  & 
Serg.  507 ;  Chandler  v.  Hoyle,  58  111.  46 ;  Robinson  v.  Hlinois, 
etc.,  R.  R.  Co.,  30  Iowa,  401  ;  Mechanics'  Bank  v.  Merchants' 
Bank,  6  Mete.  13,  26. 

If  a  principal  employs  one  whom  he  knows  to  be  incompetent 
to  conduct  his  business  properly,  it  is  his  own  folly  and  he  must 
bear  the  loss.      Wakeman  v.  Hazelton,  3  Barb.  Ch.  148. 

§  7.  Incidental  duties  of  agents.  There  are  duties  which  the 
law  imposes  upon  an  agent  without  any  express  stipulations  on 
the  subject.  And  one  of  these  duties  of  an  agent  is  to  keep  his 
principal  informed  of  his  acts,  and  to  inform  him  within  a  rea- 
sonable time,  of  sales  made,  and  to  give  him  timely  notice  of  all 
facts  and  circumstances,  which  may  render  it  necessary  for  him 
to  take  measures  for  his  security ;  and  in  case  of  a  neglect  to  do 
BO,  he  will  be  liable  for  the  loss  caused  by  his  negligence.  Clark 
V.  Bank  of  Wlieeling,  111  Penn.  St.  322;  Forrestier\.  Boardman, 
1  Story,  44,  56  ;  Dodge  v.  Perkins,  9  Pick.  368. 

An  agent  has  no  right  to  mix  the  funds  of  his  principal  with 
his  own,  and  then  hold  the  principal  liable  for  the  depreciation 
of  money  in  his  hands.  Webster  v.  Pierce,  35  111.  158.  Or  for 
its  loss  by  theft.  Bartlett  v.  Hamilton,  46  Me.  435  ;  Massachu- 
setts Life  Ins.  Co.  v.  Carpenter,  2  Sweeney,  734.  So  when  an 
agent  deposits  in  his  own  name  the  money  of  his  principal,  the 
agent  must  bear  the  loss  in  case  of  the  failure  of  the  bank. 
Cartmell  v.  Altar d,  7  Bush  (Ky.),  482;  Hammon  v.  Cottle,  6 
Serg.  &  R.  290  ;  Matter  of  Stafford,  11  Barb.  353  ;  Macdonnell 
V.  Harding,  7  Sim.  178  ;  Norris  v.  Hero,  22  La.  Ann.  605  ;  Case 
V.  Abeel,  1  Paige,  393. 

Vol.  I.— 31 


242  AGENCY. 

§  8.  Instructions  to  agents.  AVliere  the  autliority  of  an  agent 
is  limited  by  instructions,  it  is  his  duty  to  adhere  faithfully  to 
them,  in  all  cases  in  which  they  ought  properly  to  be  applied  ; 
and  if  he  unnecessarily  exceeds  his  commission  or  powers,  or 
risks  the  property  of  his  principal  without  authority,  he  renders 
himself  responsible  to  his  principal  for  all  loss  or  damage  which 
naturally  results  from  his  acts.  Dwight  v.  New  York  Central  M. 
R.  Co.,  33  N.  Y.  (6  Tiff.)  610 ;  Scott  v.  Rogers,  31  N.  Y.  (4  Tiff.) 
676;  4  Abb.  Ct.  App.  157 ;  Wilson  v.  Wilson,  26  Penn.  St.  393  ; 
Courcler  v.  Ritter,  4  Wash.  C.  C.  651 ;  Hall  v.  Storrs,  7  Wis. 
253  ;  Wliitney  v.  Merchants''  Union  Express  Co.,  104  Mass.  152; 
6  Am.  Rep.  207. 

It  is  the  duty  of  a  principal  to  give  his  instructions  in  clear 
and  direct  language  ;  for  it  is  but  a  reasonable  principle  of  inter- 
pretation, as  well  as  a  requirement  of  justice,  that  instructions 
should  not  be  construed  as  intended  to  be  obligatory,  unless  they 
are  distinct,  positive  and  express,  and  that  an  agent  should  not 
be  made  liable  for  a  departure  from  the  will  of  his  principal, 
where  his  orders  are  ambiguous,  doubtful,  or  are  not  explicit. 
Vianna  v.  Barclay,  3  Cow.  281  ;  Jerms  v.  Hoyt,  2  Hun,  637 ; 
S.  C,  5  N.  Y.  S.  C.  (T.  &  C.)  199  ;  DeTastet  v.  Crousillat,  2  Wash. 
C.  C.  132,  137  ;  Bessent  v.  Harris,  63  N.  C.  542 ;  Foster  y.  Rock- 
well, 104  Mass.  167  ;  Long  v.  Pool,  68  N.  C.  479  ;  Marsh  v.  Whit- 
more,  21  Wall.  178. 

Where  the  instructions  are  clear,  precise,  and  imperative,  they 
ought  to  be  followed  strictly,  or,  as  has  been  held,  exactly.  Wil- 
son V.  Wilson,  26  Penn.  St.  393  ;  Williams  v.  Higgins,  30  Md. 
404  ;  Rechtscherd  v.  Accommodation  Bank  of  St.  Louis,  47  Mo. 
181 ;  Brown  v.  McGran,  14  Peters,  479 ;  Blot  v.  Boiceau,  3 
N.  Y.  (3  Comst.)  78. 

That  the  agent  intended  to  benefit  his  principal,  is  no  legal 
excuse  for  disregarding  his  explicit  instructions.  Rechtscherd 
V.  Accommodation  Bank  of  St.  Louis,  47  Mo.  181  ;  Evans  v. 
Root,  7  N.Y.  (3  Seld.)  186  ;  Scott  v.  Rogers,  4  Abb.  Ct.  App.  157; 
31  N.  Y.  (4  Tiff.)  676. 

There  are  exceptions  to  the  rule  that  an  agent  is  bound  to 
observe  or  obey  his  instructions;  for,  if  by  some  sudden  emer- 
gency, or  supervening  necessity,  or  other  unexpected  event,  it 
becomes  impossible  for  the  agent  to  comply  with  his  instructions, 
or  a  literal  compliance  with  them  would  frustrate  the  objects  of 
the  principal,  and  amount  to  a  sacrifice  of  his  interests,  it  is  the 
duty  of  the  agent,  under  such  circumstances,  to  do  the  best  he 


AGENCY.  243 

can,  in  the  exercise  of  a  sound  discretion,  to  prevent  a  loss  to  his 
principal;  and,  if  he  acts  in  good  faith,  and  exercises  a  reasona- 
ble discretion,  his  acts  will  bind  his  principal.  Greenleafv. 
Moody,  13  Allen,  363;  ForrestierY.  Bordman,  1  Story,  43,  61; 
Williams  v.  Shackelford,  16  Ala.  318 ;  Liotard  v.  Graves,  3  Caines, 
226 ;  Dusar  v.  Perit,  4  Binn.  361. 

An  agent  is  not  bound  to  follow  instructions  which  require  him 
to  do  an  illegal  or  immoral  act.  Story  on  Agency,  §  195; 
Whart.  on  Agency,  §  542, 

But  a  principal  who  employs  an  agent  to  do  an  illegal  act  is 
responsible  for  the  injury  done,  whether  the  agent  acts  innocently 
or  maliciously.  Hynes  v.  Jungren,  8  Kans.  391;  Enos  v.  Hamil- 
ton, 24  Wis.  658. 

§  9.  Effect  of  usage.  In  the  absence  of  instructions,  and  where 
there  is  a  known  usage  of  trade,  or  a  mode  of  transacting  business, 
applicable  to  the  particular  agency,  it  is  the  duty  of  the  agent  to 
conform  to  it;  and  any  unnecessary  departure  from  it  will  be  at 
his  risk.  Ayrault  v.  Pacific  Bank,  47  N.  Y.  (2  Sick.)  570;  S.  C, 
7  Am.  Rep.  489  ;  Bank  of  Utica  v.  McKinster,  11  Wend.  473  ; 
Tyson  v.  State  Bank,  6  Blackf.  225 ;  Thompson  v.  Bank  of  the 
State,  Eiley,  81;  S.  C,  3  Hill  (S.  C),  78. 

In  such  cases,  if  the  agent  acts  in  accordance  with  legal  usa- 
ges he  will  not  be  liable  for  negligence.  Carter  v.  Cunningham, 
7  Mete.  491 ;  Parke  v.  Lowrie,  6  Watts  &  Serg.  507;  Wallace  v. 
Bradshaw,  6  Dana,  382;  McMasters  v.  Pennsylvania  R.  B.  Co., 
69  Penn.  St.  374;  S.  C,  8  Am.  Rep.  264. 

The  instances,  in  which  an  agent  will  be  liable  for  neglecting 
to  act  according  to  the  usages  of  the  profession,  trade  or  busi- 
ness in  which  he  is  employed,  are  numerous  and  varied.  He 
must  possess  ordinary  skill,  and  use  reasonable  diligence  {ante, 
240) ;  and  a  knowledge  of  the  established  and  well-known  usa- 
ges of  the  place  or  business  in  which  he  is  engaged  is  but  a 
resonable  requirement  for  the  protection  of  the  principal's 
rights.  There  is  no  class  of  agents,  and  no  kind  of  service 
which  an  agent  can  render,  to  which  this  rule  does  not  apply. 

§  10.  Of  sub-agents  or  substitutes.  It  is  an  established  general 
rule,  that  an  agent  cannot  delegate  his  authority,  ante,  215.  But 
there  are  cases  in  which  he  may  employ  another  to  aid  him,  or 
to  perform  an  act  which  is  merely  mechanical  or  instrumental, 
and  in  subordination  to  the  direction  of  the  agent.  Commercial 
Bank  of  Lake  Erie  v.  Norton,  1  Hill,  601 ;  Williams  v.  Woods, 
16  Md.  220. 


244  AGENCY. 

In  addition  to  this,  it  is  not  nnusual  for  letters  of  attorney,  or 
other  instruments,  to  provide  for  the  employment  of  sub-agents 
or  substitutes.  In  such  cases,  the  original  agent  or  attorney  is 
not  liable  for  the  acts  or  the  omissions  of  such  sub-agent  or  sub- 
stitute, as  he  may  appoint  or  employ,  unless  in  making  such 
appointment  he  is  guilty  of  fraud,  or  of  gross  negligence,  or 
,  improperly  co-operates  in  such  acts  or  omissions  by  the  sub- 
agent. 

Besides  this  express  authority,  there  are  many  other  cases  in 
which  a  similar  authority  may  arise  by  implication,  from  the 
conduct  of  the  parties,  or  from  the  usages  of  trade. 

It  has  been  held,  that  where  a  draft  which  is  payable  at  a  dis- 
tant place,  is  left  with  a  bank  for  collection,  it  must  be  presumed 
that  it  was  intended  to  be  transmitted  to  a  sub-agent,  at  the  place 
where  it  is  payable,  and  not  that  the  bank  is  to  employ  its  own 
officers  to  proceed  there,  for  the  purpose  of  obtaining  payment. 
Dorchester  and  Milton  Bank  v.  New  England  BanJc,  1  Cush. 
(Mass.)  177. 

But  it  has  also  been  held,  that  a  bank  which  receives  a  note 
for  collection,  whether  payable  at  its  counter,  or  elsewhere,  is 
liable  for  any  neglect  of  duty  by  which  any  of  the  parties  are 
discharged  ;  and,  that  a  notary  employed  by  the  bank  to  present 
the  note,  and  to  give  the  proper  notices  to  charge  the  parties,  is 
the  agent  of  the  bank,  and  not  of  the  depositor  or  owner  of  the 
paper ;  although  such  liability  may  be  varied  by  express  con- 
tract, or  by  implication  from  general  usage.  Ayrault  v.  Pacific 
Bank,  47  K  Y.  (2  Sick.)  570;  S.  C,  7  Am.  Eep.  489;  see,  also, 
Palmer  v.  Holland,  51  N.  Y.  (6  Sick.)  416 ;  S.  C,  10  Am.  Rep. 
616. 

If  a  principal  directs  his  agent  to  sell  goods  at  public  auction, 
and  the  sale  cannot  be  made  except  by  a  licensed  auctioneer,  the 
authority  to  employ  such  an  auctioneer  will  be  implied.  Laus- 
satt  V.  Lippincott,  6  Serg.  &  R.  386-394  ;  1  Am.  Lead.  Cas.  805, 
6th  ed.     See  ante^  243,  §  9,  Usage,  etc. 

§  11.  Losses  ;  l>y  whom  Iborne.  Inasmuch  as  the  lawful  and 
proper  acts  of  the  agent  are  the  acts  of  the  principal,  and  since 
the  principal  is  entitled  to  all  the  advantages  which  may  be 
derived  or  result  from  the  agent' s  acts  ;  so,  on  the  other  hand, 
he  must  submit  to  tliose  losses  which  occur  in  the  course  of  the 
agency.  De  Arcy  v.  Lyle,  5  Binn.  441-455  ;  1  Am.  Lead.  Cas. 
856,  5th  ed.  Where  the  agent  has  sold  goods  according  to 
instructions,  or  in  accordance  with  the  usual  course  of  trade,  and 


AGENCY.  243 

with  proper  diligence,  he  will  not  be  liable  for  any  loss  which 
results  from  the  subsequent  insolvency  of  the  purchaser.  Ante^ 
223,  §  2. 

An  agent  who  deposited  in  his  own  name,  Confederate  money, 
which  he  had  collected  for  his  principal,  was  held  not  liable  for 
the  loss  of  the  money  arising  from  the  insolvency  of  the  bank 
on  the  failure  of  the  Confederacy,  especially  as  the  duty  of 
transmittal  to  his  principal  was  suspended  by  the  war.  Hale  v. 
Wall,  22  Gratt.  (Va.)  424. 

A  collecting  officer  or  agent,  who  is  not  instructed  to  the  con- 
trary, is  authorized  to  receive,  in  payment  of  such  debts  as  he 
may  have  to  collect,  whatever  kind  of  currency  is  received  by 
prudent  business  men,  for  similar  purposes,  as  where  a  clerk  and 
master,  in  one  of  the  seceded  States,  in  the  year  1863,  received 
Confederate  currency  in  payment  of  the  purchase-money,  due 
for  land,  sold  in  1858.  Baird  v.  Hall,  67  N.  C.  230  ;  Russell  v. 
Hankey,  6  Term  Rep.  12. 

A  principal  who  intrusts  an  agent  with  money  for  investment, 
but  who  subsequently  instructs  him  not  to  invest  it,  renders  the 
agent  a  mere  depositary,  who  is  liable  for  gross  neglect  only  ; 
and,  therefore,  if  the  funds  begin  to  depreciate  while  in  the 
agent's  hands,  it  is  not  his  duty  to  return  or  offer  to  return  the 
money  to  his  principal,  when  the  latter  has  equal  facilities  with 
the  agent  for  knowing  of  the  depreciation  of  the  funds.  RicTi- 
ardsoii  v.  Futrell,  42  Miss.  525.  A  letter  sent  by  mail  to  an 
agent  at  a  distant  place,  directing  him  to  "forward"  the  pro- 
ceeds of  a  note  when  collected,  authorizes  the  agent  to  send  the 
money  in  a  letter,  by  mail,  and  if  the  money  is  never  received 
by  the  principal,  it  will  be  his  loss,  not  that  of  the  agent.  Buell 
V.  Chapin,  99  Mass.  594.  But  if  an  agent  remits  the  money  of 
his  principal  in  a  manner  unauthorized  between  them,  it  will  be 
done  at  the  risk  of  the  agent,  ^rr  v.  Cotton,  23  Tex.  411;  Burr 
V.  Sickles,  17  Ark.  428  ;  Ferris  v.  Paris^  10  Johns.  285. 

An  agent  who  places  his  principal's  funds  in  the  hands  of  a 
third  person,  subject  to  the  principal's  drafts  fjor  the  amount,  is 
not  liable  for  a  loss  of  the  funds  by  the  insolvency  of  the  deposi- 
tary, if  he  has  exercised  reasonable  prudence  in  the  choice  of  the 
depositary.  Hammond  v.  Cottle,  6  Serg.  &  R.  290 ;  KnigJit  v. 
PUmouth,  3  Atk.  480. 

§  12.  Adverse  interest  by  agent.  In  the  employment  of  an 
agent,  the  principal  bargains  for  the  disinterested  skill,  diligence, 
and  zeal  of  the  agent  for  his  own  exclusive  benefit.    And  when- 


246  AeENCY. 

ever  an  agent  is  employed,  the  principal  is  entitled  to  the  intelli 
gence,  experience,  care,  skill  and  diligence  of  the  agent  without 
any  conflicting  interests  on  his  part  to  prejudice  the  rights  of 
such  principal.     Bain  v.  Brown,  56  N.  Y.  (11  Sick.)  285. 

An  agent  cannot  act  for  his  principal  and  for  himself  in  the 
same  transaction,  by  being  both  buyer  and  seller  of  property. 
And  an  agent  to  sell  cannot  himself  become  the  purchaser. 
Bain  v.  Brown,  56  N.  Y.  (11  Sick.)  285 ;  Bartholomew  y.  Leacli, 

7  Watts,  472 ;  Grumley  v.  Webh,  44  Mo.  444 ;  Walker  y.  Palmer, 
24  Ala.  358  ;  Blount  v.  Roheson,  2  Jones'  Eq.  (N.  C.)  73  ;  Arm- 
strong V.  Elliott,  29  Mich.  485 ;  Mason  v.  Bauman,  62  111.  76 ; 
Collins  V.  Case,  23  Wis.  230  ;  Oaines  v.  Allen,  58  Mo.  541. 

So  an  agent  employed  to  purchase  cannot  sell  his  own  prop- 
erty to  the  principal.  Conlcey  v.  Bond,  34  Barb.  276  ;  36  N.  Y. 
(9  Tiff.)  427 ;  3  Abb.  (N.  S.)  415  ;  2  Trans.  App.  200 ;  Gould  v. 
Gould,  36  Barb.  270. 

Although  an  agent  employed  to  sell,  cannot  buy  for  himself, 
he  may,  where  he  is  employed  to  sell  property  at  auction,  bid 
on  the  property  on  behalf  of  a  third  person.  Scott  v.  Mann,  36 
Tex.  157.  But  one  who  acts  as  an  agent  for  the  owner  of  prop- 
erty has  no  right  to  act  as  the  agent  of  others  for  the  purchase 
of  the  property,  nor  to  take  any  advantage  of  the  confidence 
which  his  position  inspires,  to  obtain  the  title  himself.  MoorsY. 
Mandlehaum,  8  Mich.  433. 

The  rule  of  equity  which  prohibits  purchases  by  parties 
placed  in  a  situation  of  trust  or  confidence  with  reference  to  the 
subject  of  purchase,  is  not  confined  to  trustees  or  others  who 
hold  the  legal  title  to  the  property  to  be  sold  ;  nor  is  it  confined 
to  a  particular  class  of  persons,  such  as  guardians,  trustees,  at- 
torneys or  solicitors.  It  is  a  rule  which  applies  universally  to 
all  who  come  within  its  principle ;  which  principle  is,  that  no 
party  can  be  permitted  to  purchase  an  interest  in  property  and 
hold  it  for  his  own  benefit,  where  he  has  a  duty  to  perform  in 
relation  to  such  property  which  is  inconsistent  with  the  charac- 
ter of  a  purchaser  on  his  own  account  and  for  his  individual  use. 
Yan  Epps  v.  Van  Epps,  9  Paige,  237,  241 ;  Blake  v.  Buffalo 
Creek  R.  R.  Co.,  m  N.  Y.  (11  Sick.)  485,  491  ;  MichoudY.  Girod, 

4  How.  (U.  S.)503  ;  RingoY.  Binns,  10  Pet.  269;  KrutzY.  Fisher, 

8  Kans.  90 ;  9  id.  501 ;  Grumley  v.  Welh,  44  Mo.  444  ;  Parker  y. 
Vose,  45  Me.  54  ;  Kerfoot  v.  Hyman,  52  111.  512;  Moore  v.  Moore, 

5  N.  Y.  (1  Seld.)  256 ;  Lytle  v.  Sever Idge,  58  N.  Y.  (13  Sick.)  692, 
606. 


AGENCY.  247 

An  agent  may  lawfully  purchase  from  Ms  principal,  if  there  is 
no  fraud  in  the  transaction.    FlsJief  s  Appeal,  34  Penn.  St.  29. 

In  making  a  contract  which  requires  the  exercise  of  judgment 
or  discretion,  a  person  cannot  act  as  the  agent  of  both  parties  ; 
and  where  he  undertakes  to  do  so,  a  court  of  equity  will  avoid 
the  contract  upon  the  application  of  either  of  the  parties. 
New  York  Central  Ins.  Co.  v.  National  Protection  Ins.  Co., 
14]^.  Y.  (4  Kern.)  85;  Copeland  v.  Mercantile  Ins.  Co.,  6  Pick. 
197,  204. 

An  agent  cannot  act  for  both  parties  in  making  a  contract, 
where  he  is  invested  with  a  discretion  by  each,  and  when  each 
of  them  is  entitled  to  the  benefit  of  his  skill  and  judgment. 
Utica  Ins.  Co.  v.  Toledo  Ins.  Co.,  17  Barb.  132. 

It  is  irregular  for  the  same  person  to  appear  as  attorney  for 
both  parties  on  the  return  of  a  summons  issued  by  a  justice  of 
the  peace.  Sherwood  v.  Saratoga,  etc.,  R.  R.  Co.,  15  Barb.  650; 
Herrick  v.  Catley,  1  Daly,  512;  S.  C,  30  How.  208.  But  there 
may  be  cases  in  which  counsel  may  act  as  such,  for  both  parties 
at  the  same  time  ;  and,  the  fact  that  a  contract  is  drawn  by  and 
under  the  advice  of  one,  who,  at  the  time,  is  counsel  for  one  of 
the  parties,  when  such  fact  is  known  to  the  other  party,  does 
not,  in  the  absence  of  evidence  of  fraud  or  unfairness,  invalidate 
or  affect  the  contract.    JosUn  v.  Cowce,  56  N.  Y.  (11  Sick.)  626. 

A  person  cannot  act  as  agent  for  both  purchaser  and  seller, 
and  earn  a  compensation  from  each,  unless  by  a  distinct  arrange- 
ment between  all  who  are  concerned.  Dunlop  v.  Richards,  2 
E.  J).  Smith,  181 ;  WatJcins  v.  Cousall,  1  id.  65;  Lloyd  v.  Calston, 
5  Bush  (Ky.),  587. 

The  law  does  not  forbid  a  broker  or  real  estate  agent  from 
acting  as  the  agent  of  both  parties,  where  it  is  done  without  con- 
cealment or  other  fraud;  and,  if  both  vendor  and  purchaser  em- 
ploy the  same  agent,  with  a  knowledge  that  he  is  employed  by, 
and  is  acting  for,  botli,  his  acts  will  be  upheld,  and  he  may 
recover  a  compensation  from  both  parties.  Rowe  v.  Stevens,  3 
Jones  &  Sp.  189;  Spyer  v.  Fisher,  5  id.  93. 

But,  a  broker  who  has  acted  for  both  parties  in  negotiating  an 
exchange  of  real  estate  between  them,  without  informing  either 
that  he  was  employed  by  the  other  is  not  legally  entitled  to 
commissions  for  his  services.  Farnsworth  v.  Hemmer,  1  Allen, 
494;  Pugsley  v.  Murray,  4  E.  D.  Smith,  245. 

So,  a  broker  who  is  employed  to  sell  or  exchange  property, 
with  a  written  promise  of  pay  if  he  finds  a  customer  to  whom  a 


248  AGENCY. 

sale  or  exchange  is  effected,  is  in  effect  tlie  agent  of  the  owner, 
and  cannot  act  for  the  customer  ;  and,  if  he  exacts  from  the  latter 
a  conditional  promise  of  compensation  before  sending  him  to  the 
owner,  he  cannot  recover  pay  from  the  owner  for  his  services, 
even  if  a  sale  or  exchange  is  effected.  Maker  v.  Osgood,  98 
Mass.  348. 

So  a  person  who  is  employed  by  a  steamship  company  to  ex- 
amine a  vessel  which  it  proposes  to  purchase,  cannot  make  a 
valid  conditional  contract  with  the  owner  of  the  vessel  for  a 
specified  compensation  in  case  a  sale  is  made  to  the  company ; 
such  a  contract  is  in  conflict  with  the  agent' s  duty  to  the  com- 
pany, and  therefore  void.  Place  v.  G-reenman,  6  N.Y.  S.  C.  (T. 
&  C.)  681 ;  S.  C,  4  Hun,  660  ;  Eterheart  v;  Searle,  71  Penn.  St. 
256. 

A  person  who  brings  together  a  buyer  and  a  seller,  each  of 
whom  has  agreed,  without  the  knowledge  of  the  other,  to  pay 
him  a  commission  on  any  contract  made,  and  a  contract  is  made, 
in  the  making  of  which  such  person  takes  no  part  as  agent  for 
either,  but  acts  as  a  mere  middleman,  his  concealment  from  each 
of  the  agreement  with  the  other  is  not  fraudulent,  and  he  may 
recover  from  each  the  commissions  agreed  upon.  Rupp  v.  Samp- 
son, 16  Gray,  398.  So  an  agent  who  is  employed  by  different 
owners  to  sell  two  parcels  of  real  estate,  if  he  brings  about  an 
interview  between  the  owners,  who  make  an  exchange,  and  the 
agent  has  no  agency  in  the  exchange,  except  in  bringing  about 
the  interview  and  writing  the  deeds,  he  may  recover  the  custom- 
ary compensation  from  each  party.  Mullen  v.  Keetzleh,  7  Bush 
(Ky.),  253 ;  see  Stewart  v.  Mather,  32  Wis.  344.  ~ 

A  contract  made  by  an  individual  as  the  agent  of  both  parties, 
is  not  void,  but  merely  voidable,  at  the  election  of  the  principal, 
if  he  comes  into  court  within  a  reasonable  time,  but,  unless 
repudiated  within  a  reasonable  time,  the  objection  will  be  waived. 
Greenwood  v.  Spring,  54  Barb.  375  ;  see  Bruce  v.  Davenport,  1 
Abb.  Ct.  App.  233 ;  3  Keyes,  472  ;  3  Trans.  App.82  ;  5  Abb.  (N.  S.) 
185. 

A  person  who  voluntarily  emploj^s  the  agent  of  another,  know- 
ing the  fact  of  such  existing  agency,  is  estopped  from  setting  up 
the  rule  that  the  same  person  cannot  be  the  agent  of  two  princi- 
pals who  have  conflicting  interests.  Fltzsimmons  v.  Soutliern 
Express  Co.,  40  Ga.  330 ;  S.  C,  2  Am.  Rep.  577. 

It  is  a  rule  of  extensive  application  that  where  a  person  is 
actually  or  constructively  an  agent  for  another,  all  proflts  and 

»  Siegel  v.  Gould,  7  Lans.  177. 


AGENCY.  249 

advantages  made  by  him  in  tlie  business,  beyond  his  ordinary 
compensation,  are  to  be  for  the  benefit  of  his  employer.  Didton 
V.  Willner,  62  N.  Y.  (7  Sick.)  312  ;  Minnesota  Central  R.  R.  Co. 
V.  Morgan,  52  Barb.  217,  affd. ;  6  Alb.  Law  Jour.  173 ;  Eslile- 
man  v.  Lewis,  49  Penn.  St.  410 ;  Leake  v.  Sutherland,  25  Ark. 
219  ;  White  v.  Ward,  26  id.  445 ;  Fisher  v.  Krutz,  9  Kans.  501  ; 
8  id.  90-98;  Bunker  v.  Miles,  30  Me.  431.  But  one  who  consti- 
tutes another  his  agent  to  purchase  a  piece  of  land,  may  agree 
to  pay  him  a  specified  sum  if  he  obtains  the  land,  and  that  the 
agent  may  make  the  best  bargain  he  can  in  the  purchase,  with- 
out any  liability  to  account  to  the  principal  for  the  profit  of  the 
transaction,  provided  there  is  no  taint  of  fraud.  Anderson  v. 
Weiser,  24  Iowa,  428.  And  a  principal  cannot  recover  from  his 
agent,  as  profits  belonging  to  the  former,  such  mere  gratuities  as 
have  been  received  by  the  agent  for  incidental  benefits  derived 
from  services  rendered  by  the  agent  for  his  principal,  where 
neither  the  principal  nor  the  agent  had  any  legal  claim  for  the 
amount  so  received.  jEtna.  Ins.  Co.  v.  Church,  21  Ohio  St.  492. 
Although  a  person  cannot  properly  be  the  agent  of  both  par- 
ties, yet  if  he  accepts  the  position  of  agent  for  the  buyer  with- 
out disclosing  the  fact  that  he  is  also  agent  for  the  seller,  he  can- 
not afterward  repudiate  such  position  for  the  purpose  of  shielding 
himself  from  liability  to  the  buyer,  on  the  ground  that  he  was 
the  agent  of  the  seller.  Cottom  v.  Ilolliday,  59  111.  176.  So  where 
one  undertakes,  without  consideration,  to  sell  the  property  of 
another  with  his  consent,  and  he  then  procures  a  sale  of  it  at  a 
less  price  than  the  purchaser  was  willing  to  give,  and  is  rewarded 
by  the  latter  for  so  doing,  he  will  be  liable  to  the  owner  for  the 
loss  thus  sustained.     Hunsager  v.  Sturgis,  29  Cal.  142. 

ARTICLE  yi. 

OF   THE    LIABILITIES   OF   AGENTS   TO   THEIR   PRINCIPALS. 

Section  1.  In  general.  The  duties  of  agents  have  been  noticed 
in  a  preceding  article,  ante,  235,  art.  5,  and  in  this  place  the  sub- 
ject of  an  agent's  liabilities  to  his  principal  will  be  considered. 
As  has  been  seen,  ante,  235,  the  law  requires  an  agent  to  act  in 
entire  good  faith  toward  his  principal ;  and  it  also  requires  him 
to  possess  competent  knowledge  and  proper  skill  in  such  busi- 
ness as  he  undertakes  to  perform.  For  the  want  of  good  faith, 
skill,  or  diligence,  or  for  a  violation  of  his  duties  or  obligations 
to  his  principal,  whether  it  be  by  exceeding  his  authority  or  by 
Vol.  I.  — 32 


250  AGENCY. 

positive  misconduct,  or  by  mere  negligence  or  omission  in  the 
discharge  of  the  duties  or  offices  of  his  agency,  or  in  any  other 
manner,  he  will  be  liable  to  his  principal  for  any  loss  or  damage 
that  may  result  to  him  in  consequence.  To  maintain  an  action 
against  an  agent,  it  is  not  necessary  to  show  fraud  upon  his  part, 
for  an  agent  is  liable  for  neglecting  to  perform  a  duty  which  he 
has  undertaken ;  and  he  is  bound,  not  only  to  good  faith,  but  to 
exercise  reasonable  diligence,  and  to  possess  such  skill  as  is 
ordinarily  possessed  by  persons  of  common  capacity  engaged  in 
the  same  business.  Heineman  v.  Heard,  50  IN".  Y.  (5  Sick.)  27  ; 
2  Hun,  324  ;  4  N.  Y.  S.  C.  (T.  &  C.)  666. 

To  sustain  a  contract  of  sale  between  principal  and  agent,  upon 
a  purchase  made  by  the  agent,  of  property  which  formed  the 
subject  of  his  agency,  it  must  appear  that  the  transaction  was 
fair  and  honest,  on  his  part,  and  that  before  the  sale  he  disclosed 
to  his  principal  such  knowledge  as  he  possessed  concerning  its 
value,  unless  the  principal  dispensed  with  that  duty.  Brown  v. 
Post,  1  Hun,  303  ;  Mingo  v.  Blnns,  10  Peters,  269 ;  Mlchoud  v. 
Oirod,  4  How.  (U.  S.)  503  ;  Condit  v.  BlacJcwell,  22  N.  J.  Eq.  481 ; 
ComstocJc  V.  ComstocTc,  57  Barb.  453 ;  JVorris  v.  Taylor,  49  HI. 
18. 

An  agent  who  is  guilty  of  a  fraud,  or  of  a  neglect  of  duty,  in 
consequence  of  which  his  principal' s  property,  which  is  the  sub- 
ject of  his  agency,  is  sold,  cannot  become  a  purchaser  upon  such 
sale.  lb.      McMaJton  v.  McGraw,  26  Wis.   614;    Eldridge  v. 
Walker,  60  111.  230  ;    WMte  v.  Ward,  26  Ash.  445  ;  Grumley  v. 
Webh,  44  Mo.  444. 

To  render  an  agent  liable  to  his  principal,  it  is  not  necessary 
that  the  loss  or  damage  should  be  caused  by  the  direct  or 
immediate  act  or  omission  of  the  agent.  If  he  knowingly 
deposits  goods  in  an  improper  place,  and  they  are  destroyed  by 
an  accidental  lire,  or  are  injured  by  water,  he  will  be  liable  to 
his  principal  for  the  loss.  Powers  v.  Mitcliell,  3  Hill,  545 ; 
Stevens  v.  Boston  &  Maine  P.  P.,  1  Gray,  277. 

But  warehousemen  are  not  liable  for  the  neglect  of  their  ser- 
vants, in  not  rescuing  goods  in  the  warehouse,  which  are  de- 
stroyed by  an  accidental  fire  in  the  night,  when  the  servants  are 
present,  but  not  in  the  course  of  their  employment.  Aldricli  v. 
Boston  &  Worcester  P.  P.  Co.,  100  Mass.  81  ;  S.  C,  1  Am.  Kep. 
76  ;  Norway  Plains  Co.  v.  Boston  &  Maine  P.  P.,1  Gray,  263. 

A  paid  agent,  who,  by  mistake,   satisfies  for  his  principal  a . 
mortgage  for  an  amount  less  than  is  actually  due  upon  it,  is 


AGENCY.  251 

liable  to  pay  the  deficiency  to  his  principal.  Kemplcer  v.  Boh- 
lyer,  29  Iowa,  274.  An  agent,  though  having  the  fullest  author- 
ity and  discretion,  consistent  with  good  faith,  is  liable,  if  he  acts 
unfaithfully,  or  grossly  mismanages  the  business  intrusted  to 
him.  Myles  v.  Myles,  6  Bush  (Ky.),  237.  So  he  is  liable  for 
disregarding  express  and  positive  instructions  as  to  investing 
money,  if  the  securities  he  takes  are  not  good.  Williams  v. 
Higgins,  30  Md.  404.  An  agent  who  collects  money,  and 
receives  illegal  or  depreciated  currency  in  discharge  of  legacies 
or  debts,  is  liable,  in  good  money,  for  the  full  amount  of  the 
debts  or  legacies.     Turner  v.  Turner,  36  Tex.  41. 

A  cashier  of  a  bank  who  neglects  to  make  demand  of  pay- 
ment of  a  note,  and  thus  discharges  the  indorser,  who  is  the 
only  responsible  party,  is  liable  to  the  bank  for  the  resulting 
damages.  Bidwell  v.  Madison,  10  Minn.  13.  So  a  bank  which 
receives  a  promissory  note  for  collection,  whether  payable  at  its 
counter,  or  elsewhere,  is  liable  for  any  neglect  of  duty  by  which 
any  of  the  parties  to  the  note  are  discharged.  AyraultY.  Facific 
Bank,  47  N.  Y.  (2  Sick.)  570  ;  S.  C,  7  Am.  Eep.  489  ;  Montgomery 
County  Bank  v.  Albany  City  Bank,  7  N.  Y.  (3  Seld.)  459  ;  Com- 
mercial Bank  of  Pennsylvania  v.  Union  Bank  of  New  York, 
11  N.  Y.  (1  Kern.]  203  ;  Beeves  v.  State  Bank  of  Ohio,  8  Ohio 
St.  465  ;  see,  also,  Nunnemaker  v.  Lanier,  48  Barb.  234. 

The  rule  is  the  same  where  a  note  is  delivered  to  an  express 
company,  for  collection.  Palmer  v.  Holland,  51  N.  Y.  (6  Sick.) 
416  ;  S.  C,  10  Am.  Eep.  616. 

A  bill  of  exchange  transmitted  by  the  holder  to  a  bank  as 
agent,  for  presentment  to  the  drawee,  must  be  presented  to  the 
drawee,  and  an  explicit  acceptance  obtained,  or  notice  given  to 
the  holder,  as  in  case  of  non-acceptance,  or  such  agent  will  be 
liable  for  any  loss  sustained  by  the  holder.  Walker  v.  Bank  of 
State  of  New  York,  9  N.  Y.  (5  Seld.)  582. 

An  agent  who  is  employed  to  obtain  orders  for  the  construc- 
tion of  machinery  by  his  principal,  and  who  engages  in  a  nego- 
tiation for  such  an  order,  which  was  broken  off,  without  reason 
to  suppose  it  would  be  renewed,  must  communicate  or  transmit 
to  such  principal  a  letter,  which  he  received  after  the  termination 
of  his  agency,  though  written  before  that  event,  and  it  is  no 
excuse  for  not  sending  the  letter,  that  the  agent  supposed  that 
the  principal  could  not  comply  with  the  order.  Edmonstone  v. 
Hartshorn,  19  N.  Y.  (5  Smith)  9. 

There  are  cases,  however,  in  which  the  loss  or  damage,  caused 


252  AGENCY. 

by  tlie  acts  or  omissions  of  the  agent,  are  so  remote  as  not  to 
subject  him  to  an  action.  8hort  v.  Skipwitli,  1  Brock.  Cir.  103, 
104 ;  Bell  v.  Cunningham,  3  Peters,  69,  84,  85  ;  5  Mason,  161 ; 
Smitli  V.  Condrij,  1  How.  (U.  S.)  28. 

And,  to  be  actionable,  there  must  be  a  real  loss,  or  an  actual 
damage,  and  not  merely  a  probable  or  possible  one.  Webster  v. 
Be  Tastet,  7  Term  R.  157 ;  Bale  v.  Wall,  22  Gratt.  (Va.)  424. 

§  2.  Accounting  Iby  agents.  Where  the  business  in  which  an 
agent  is  engaged,  requires  an  account  to  be  kept,  it  is  his  duty 
to  keep  full,  regular  and  accurate  accounts  of  all  transactions  on 
behalf  of  his  principal,  not  only  of  his  payments  and  disburse- 
ments, but  also  of  his  receipts ;  and  to  render  such  accounts  to 
his  principal,  at  all  reasonable  times,  without  any  suppression, 
concealment  or  overcharge. 

A  neglect  or  refusal  to  render  a  proper  account,  after  a  reason- 
able notice  or  request  by  the  principal,  will  raise  a  presumption 
against  the  agent,  who  will  be  presumed  to  have  received  the 
money  upon  sales  made  by  him,  if  he  does  not  render  an  account 
of  them  upon  a  reasonable  demand.  Tattle  v.  Mayo,  7  Johns. 
132  ;  Pope  v.  Barret,  1  Mason,  119,  127 ;  Eaton  v.  Welton,  32 
N.  H.  352  ;  Haas  v.  Damon,  9  Iowa,  589  ;  Moore  v.  Beanchamp, 
5  Dana  (Ky.),  70,  78;  Lyles  v.  Hatton,  6  Gill.  &  J.  122,  135 ; 
Scliee  V.  Hassinger,  2  Binn.  325,  331 ;  see  Riley  v.  State,  32  Tex. 
763. 

It  is  the  duty  of  an  agent,  in  all  cases  where  he  has  collected 
money  for  his  principal,  to  give  him  immediate  notice  of  the  fact. 
McMahan  v.  Franklin,  38  Mo.  548  ;  Lyle  v.  Murray,  4  Sandf. 
590. 

An  agent  who  has  received  money  belonging  to  his  principal, 
and  unreasonably  neglects  to  inform  him  of  it,  is  liable  for 
interest  from  the  time  when  he  ought  to  have  given  the  informa- 
tion. Dodge  v.  Perkins,  9  Mete.  368  ;  Bedell  v.  Janney,  4  Gilm. 
194,  202 ;  Nishet  v.  Lawson,  1  Kelly,  275,  287 ;  Anderson  v.  State 
of  Georgia,  2  Kelly,  370,  375  ;  Leake  v.  Sutherland,  25  Ark.  219; 
Clemens  v.  Caldwell,  7  B.  Monr.  171. 

Where  an  agent  has  his  principal's  money  in  his  hands,  it  is 
not  enough  that  he  merely  renders  an  account ;  he  ought  also  to 
promptly  pay  over  the  money  to  his  principal.  And  an  agent 
who  has  received  money  for  the  use  of  his  principal  is  bound  to 
pay  it  over  to  him,  and  he  has  no  right  to  return  it  to  the  person 
from  whom  he  received  it,  for  he  will  not  be  permitted  to  dispute 
the  title  of  his  principal  by  setting  up  an  adverse  title  to  it  in  a 


AGENCY.  253 

stranger.  Hancock  v.  Goviez,  58  Barb.  490;  S.  C,  50  N.  Y. 
(5  Sick.)  668  ;  Boss  v.  Curtis,  31  N.  Y.  (4  Tiff.)  606  ;  People  ex 
rel.  Martin  v.  Brown,  55  N.  Y.  (10  Sick.)  180  ;  Bain  v.  Clark, 
39  Mo.  252 ;  Bay  v.  Southwell,  3  Wis.  657. 

So  where  money,  which  could  not  by  law  have  been  recovered 
by  the  principal,  is  voluntarily  paid  over  to  the  agent  by  the 
party  who  could  not  have  been  compelled  to  pay  it,  the  money 
becomes  the  property  of  the  principal,  in  the  agent's  hands,  for 
which  he  must  account,  and  he  cannot  defend  an  action  for  it 
upon  the  ground  that  the  money  was  paid  on  an  illegal  contract 
between  the  principal  and  the  party  paying  the  money.  Murray 
v.  YanderUlt,  39  Barb.  140 ;  Baldwin  v.  Potter,  46  Vt.  402 ; 
GTiinn  v.  CTiinn,  22  La.  Ann.  599  ;  Mayor  of  Auburn  v.  Draper , 
23  Barb.  425 ;  Daniels  v.  Barney,  22  Ind.  207. 

A  factor  who  has  received  the  money  upon  sales  made  by  him 
is  not  bound  to  remit  it  until  a  demand  of  it  is  made,  or  the  prin- 
cipal has  given  him  instructions  as  to  the  time  and  mode  of 
remitting,  for  he  is  not  bound  to  take  upon  himself  the  hazard 
of  a  remittance,  which,  should  he  act  without  authority,  the  law 
would  cast  upon  him.  Brink  v.  Dolsen,  8  Barb.  337;  Cooley  v. 
Betts,  24  Wend.  203  ;  Ferris  v.  Paris,  10  Johns.  285  ;  Hall  v. 
Peck,  10  Vt.  474  ;  Burr  v.  Sickles,  17  Ark.  428. 

But  a  demand  is  not  required  where  an  agent  denies  his 
liability  as  agent.     Tillotson  v.  McCrillis,  11  Yt.  477,  480. 

Nor  where  he  has  neglected  to  render  an  account  at  reasonable 
times,  and  to  keep  his  principal  properly  advised  as  to  the  con- 
dition of  the  agency,  or  he  is  otherwise  chargeable  with  some 
default,  neglect  or  breach  of  duty  ;  or  where  he  has  received 
general  instructions  to  remit  at  specified  times,  which  he  has  neg- 
lected to  do.  Hemenway  v.  Hemenway,  5  Pick.  389 ;  Brown  v. 
Arrott,  6  Watts  &  Serg.  402,  418. 

A  local  railroad  agent  who  is  instructed  to  remit  daily,  such 
sums  as  he  might  receive  above  a  specified  amount,  is  allowed  a 
reasonable  time,  in  view  of  his  other  duties,  to  make  the  remit- 
tance, and  he  will  not  be  liable  for  money  stolen  from  him  which 
he  did  not  receive  in  time  to  remit  as  he  was  instructed.  Robin- 
son V.  Illinois,  etc.,  R.  R.  Co.,  30  Iowa,  401. 

In  general,  an  action  to  recover  money  received  by  one  in  the 
character  of  trustee  cannot  be  maintained  until  after  a  demand, 
or  proof  in  some  other  way,  that  there  has  been  an  abuse  of  the 
trust.     Walratli  v.  Tliompson,  6  Hill,  540. 

Money  held  as  a  mere  deposit,  whether  by  a  bank  or  by  an 


254  AGENCY. 

individual,  must  be  demanded  by  the  depositor  by  a  check,  or 
otherwise,  before  he  can  maintain  an  action  for  its  recovery. 
Payne  v.  Gardiner^  29  N.  Y.  (2  Tiff.)  146  ;  Doiones  v.  Phcenix 
BanJi,  6  Hill,  297 :  Jolinson  v.  Farmers^  Bank^  1  Harr.  (Del.) 
117. 

If  a  bank  suspends  payment,  and  closes  its  doors  against  its 
creditors,  a  person  who  has  deposited  money  in  it  may  maintain 
an  action  for  the  recovery  of  his  deposit  without  first  demanding 
payment.      Watson  v.  Phcenix  BanJc,  8  Mete.  217,  221. 

A  mere  collecting  agent,  whose  duty  it  is  to  receive  money  and 
pay  it  over  in  a  reasonable  time,  or  to  give  notice  of  its  collec- 
tion, is  liable  to  an  action  without  a  demand,  if  he  neglects  to 
pay  the  money  over,  or  to  give  notice  of  its  collection.  Lillie  v. 
Hoyt,  5  Hill,  395  ;  Nelsons.  Kerr,  2  N.  Y.  S.  0.  (T.  &  C.)  299  ; 
Drexel  &  Co.  v.  Paimond,  23  .Penn.  St.  21 ;  Estes  v.  Stokes,  2 
Rich.  (S.  C.)  133;  Hawkins  v.  Walker,  4  Yerg.  (Tenn.)  188; 
Steele  v.  Mcintosh,  9  Ired.  (N.  C.)  307,  311. 

Money  collected  by  an  attorney  for  his  client  must  be 
demanded,  or  a  direction  to  remit  given  and  neglected,  before 
an  action  can  be  maintained  against  him  for  the  money.  Wal- 
radt  V.  Maynard,  3  Barb.  584  ;  Jett  v.  Hempstead,  25  Ark.  462; 
Smith  V.  Whiteside,  4  Yerg.  (Tenn.)  192  ;  Nishet  v.  Lawson, 
1  Kelly,  275,  281 ;  Pathhun  v.  Ingals,  7  Wend.  320  ;  Taylor  v. 
Bates,  5  Cow.  376  ;  Beardslee  v.  Boyd,  37  Mo.  180. 

An  attorney  who  collects  money  for  his  client  holds  it  more  in 
the  character  of  a  trustee  tlian  that  of  a  debtor,  and,  therefore,  a 
demand  is  but  reasonable  before  he  is  liable  to  an  action.  lb. 
McDonough  v.  Delassus,  10  Rob.  (La.)  481,  487,  488  ;  Bedell  v. 
Janney,  4  Gilm.  194,  201 ;  Eaton  v.  Weldon,  32  N.  H.  353  ; 
MoBroom  v.  The  Governor,  6  Port.  (Ala.)  33,  47 ;  Armstrong  v. 
Smith,  3  Blackf.  251 ;  Taylor  v.  Spears,  1  Eng.  (Ark.)  382  ; 
Cockrill  V.  Kirkpatrick,  9  Mo.  697,  704 ;  Haas  v.  Damon,  9  Iowa, 
589. 

But  no  demand  need  be  made  of  an  attorney  who  denies  his 
liability  to  pay  the  money  to  his  client,  and  claims  from  him  a 
sum  greater  than  the  amount  collected.  Walradt  v.  Maynard, 
3  Barb.  584.  But  such  a  claim  does  not  dispense  with  a  demand 
unless  the  declaration  is  made  to  the  client,  or  to  his  agent,  nor 
unless  it  is  shown  to  have  come  to  the  knowledge  of  the  client 
before  the  action  is  brought.  Pathhun  v.  Ingals,  7  Wend. 
320. 


AGENCY.  255 

ARTICLE  VII. 

DEFENSES    OF   AGENTS   AGAINST   PEINCIPALS. 

Section  1.  In  general.  The  duties  which  agents  owe  to  their 
principals,  and  their  liabilities  to  them  having  been  discussed  in 
the  last  two  articles,  it  will  be  proper  now  to  notice  some  of  the 
defenses  which  an  agent  may  interpose  to  claims  or  actions  by 
his  principal.  An  attempt  to  enumerate  all  the  instances  in 
which  a  successful  defense  may  Jbe  set  up  by  the  agent,  would  be 
difficult,  if  not  impracticable.  There  are  some  general  principles^ 
however,  which  apply  to  large  classes  of  cases,  and  some  of  these 
principles  will  be  stated  and  illustrated  by  the  adjudged  cases. 

§  2.  Illegality  as  a  defense.  There  is  scarcely  any  contract 
which  may  not  be  set  aside  or  held  invalid,  if  it  can  be  shown 
that  it  is  illegal  in  its  nature.  See  Illegality.  And  where  the 
subject-matter  of  the  agency  is  an  immoral  or  illegal  transaction, 
or  is  founded  in  fraud  or  against  public  policy,  the  agent  is  not 
bound  to  aid  in  carrying  into  effect  such  an  agency,  and  he  may 
successfully  defend  any  action  brought  against  him  by  his  prin- 
cipal, where  the  action  is  founded  upon  a  neglect  or  refusal  to 
assist  in  such  illegal  acts.  Webster  v.  DeTastet,  7  Term  R.  157  ; 
Bexioell  v,  Cliristie,  Cowp.  395  ;  Caflin  v.  Bell,  4  Camp.  183  ; 
Armstrong  v.  Toler,  11  Wheat.  258,  268. 

But  if  an  agent  consents  to  act  in  the  matter,  and  receives 
money  in  that  capacity  for  his  principal,  he  will  not  be  permitted 
to  retain  the  money  on  the  ground  of  the  illegality  of  the  trans- 
action between  the  principal  and  the  party  paying  the  money  to 
the  agent.  Ante,  253.  Murray  v.  Yanderbilt,  39  Barb.  140 ; 
Baldwin  v.  Potter,  46  Vt.  402  ;  Tenant  y.  Elliott,  1  Bos.  &  Pul.  3  ; 
Johnson  v.  Lansley,  12  C.  B.  468  ;  Bousfield  v.  Wilson,  16  M. 
&  W.  185  ;  S.  C,  16  L.  J.  Exch.  44 ;  Pointer  v.  Smith,  7  Heisk. 
(Tenn.)  137.     Ante,  253,  §  2. 

§  3 .  No  damage  to  principal.  Although  an  agent  should  neg- 
lect or  disobey  the  instructions  of  his  principal,  it  does  not  fol- 
low that  an  action  for  substantial  damages  will  always  lie 
against  him  for  such  neglect  or  disobedience.  The  agent  may 
show  that  no  loss  or  damage  has  resulted  to  the  principal  from 
the  neglect.  Ante,  251  ;  Folsom  v.  Mussey,  10  Me.  297 ; 
Fomin  v.  Oswell,  3  Camp.  357.  See  Paley  on  Agency,  74 ;  Story 
on  Agency,  §  236  ;  Suydam  v.  Allen,  20  Wend.  324  ;  Frothing- 
ham  V.  Emrton,  12  N.  H.  239. 


256  AGENCY. 

§  4.  Necessity.  An  agent  who  lias  neglected  or  violated  his 
instructions  may  show  that  his  acts  or  omissions  were  the  result 
of  an  overwhelming  necessity.  Dusar  v,  Perit,  4  Binn.  361 ; 
Day  V.  Nohle,  2  Pick.  615  ;  Forrestier  v.  Boardman,  1  Story,  44, 
51 ;  Greenleaf  v.  Moody,  13  Allen,  363.  The  law  does  not  seek 
to  compel  a  man  to  do  that  which  he  cannot  possibly  perform. 
Broom' s  Leg.  Max.  242.  With  respect  to  private  rights,  neces- 
sity privileges  a  person  acting  under  its  influence.  lb.  11. 

§  5.  Ratification.  It  has  been  seen  that  a  voluntary  ratifica- 
tion of  the  acts  of  one  who  has  assumed  to  act  as  agent,  with  a 
full  knowledge  of  all  the  material  facts  in  the  case,  will  bind  the 
principal  as  much  as  he  would  be  bound  by  a  previous  authority 
to  the  same  effect.  Ante,  218,  art.  3.  This  principle  may  also 
be  invoked  by  the  agent ;  for,  where  the  principal,  with  a  full 
knowledge  of  all  the  material  facts  and  circumstances  of  the  case, 
deliberately  ratifies  the  acts  or  omissions  of  his  agent,  he  will  be 
as  conclusively  bound  thereby  as  though  he  had  originally  given 
express  authority  to  the  agent.  Ante,  232,  art,  4,  §  13  ;  Cairnes 
V.  Bleecker,  12  Johns.  300 ;  Yianna  v.  Barclay,  3  Cow.  281 ; 
Corning  v.  Southland,  3  Hill,  552  ;  Towle  v.  Stevenson,  1  Johns. 
Cas.  110;  McK'inley  v.  Tucker,  6  Lans.  214. 

ARTICLE  VIIL 

LIABILITY   OF  AGENTS  TO  THIRD   PERSONS,  ON   CONTRACTS. 

Section  I.  A  known  agent  is  not  responsible.  An  agent  who 
makes  a  contract  in  behalf  of  his  principal,  whose  name  he  discloses 
at  the  time,  to  the  person  with  whom  he  contracts,  is  not  personally 
liable  upon  it.  Ratlibone  v.  Budlong,  15  Johns.  1 ;  Ferris  v. 
Kilmer,  48  N.  Y.  (3  Sick.)  300 ;  McClernan  v.  Hall,  33  Md.  293; 
Tiller  v.  Spradley,  39  Ga.  35.  It  is  in  relation  to  written  con- 
tracts or  instruments  that  the  question  of  an  agent's  liability 
most  frequently  arises ;  and,  several  of  the  cases  showing  when 
an  agent  will  be  liable,  and  when  not,  have  been  already  cited. 
Ante,  236,  art.  5,  §  3.  See,  also,  1  Am.  Lead.  Cas.  757-764,  5th 
ed. 

§  2.  Agent  assuming  liability.  Although  the  law  ordinarily 
exempts  an  agent  from  personal  liability,  if  he  acts  within  the 
scope  of  his  authority,  and  properly  discloses  his  principal's 
name,  yet  an  agent  is  at  liberty  to  incur  a  personal  responsibility 
if  he  chooses  to  do  so  by  his  own  act  or  contract,  or  where,  from 
his  own  conduct,  or  the  form  of  the  act  or  contract,  it  is  neces- 


AGENCY.  257 

sarily  implied,  or  created,  by  operation  of  law.  And,  if  an 
express  warranty  tliat  a  note  is  genuine,  is  made  by  tlie  agent  of 
the  seller,  tMs  will  bind  the  agent  personally,  where  it  appears 
that  such  was  the  intention.  Wilder  v.  Cowles,  100  Mass.  487. 
An  agent  who  gives  a  note  in  his  own  name,  with  nothing  upon 
it  to  indicate  that  he  does  not  assume  a  personal  liability,  will  be 
held  as  a  principal  in  the  note.  Snelling  v.  Howard,  51  N.  Y. 
(6  Sick.)  373.  A  promissory  note,  or  a  bill  of  exchange,  in  which 
no  principal  is  named,  but  is  signed  "  A  B,  agent,"  binds  A  B, 
only,  and  will  not  support  an  action  against  any  other  person. 
Williams  v.  ItohMns,  16  Gray,  77 ;  Pentz  v.  Stanton,  10  Wend. 
271 ;  Bickford  v.  First,  etc.,  Bank,  42  111.  238 ;  Collins  v.  Buck- 
eye Ins.  Co.,  17  Ohio  St.  215 ;  Woodbury  v.  Blair,  18  Iowa,  572. 
Where  one  professes  to  act  as  an  agent  and  makes  a  contract 
under  seal  to  do  work  for  another,  and  he  alone  signs  the  con- 
tract, and  receives  the  pay  for  the  work,  he  will  be  held  liable  for 
the  non-performance  of  the  work.    Einstein  v.  Holt,  52  Mo.  340. 

Where  one,  who  appears  to  have  full  control  of  the  other  busi- 
ness of  a  steamboat,  hires  a  man  to  act  as  chief  engineer,  and 
does  not  disclose  the  fact  that  he  is  an  agent,  the  person  hired 
may  recover  his  wages  of  him  personally.  Farrell  v.  Campdell, 
3  Ben.  8.  The  cases  in  which  an  agent  will  be  held  to  have 
assumed  a  personal  liability,  on  account  of  the  mode  in  which  he 
assumed  to  contract,  are  numerous  and  varied.  For  some  of 
these,  see  ante,  236,  art.  5,  §  3. 

§  3.  Agent  exceeding  his  authority.  It  has  been  shown  that  it 
is  the  duty  of  an  agent  to  act  within  the  scope  of  his  authority. 
Ante,  236,  240,  art.  5,  §§  5,  3. 

If  one  person  assumes  to  act  as  the  agent  of  another  when  he 
possesses  no  authority  from  the  principal  to  do  so  ;  or,  if  he  is 
employed  as  an  agent,  but  exceeds  the  authority  conferred  upon 
him,  he  will  be  personally  liable  to  such  persons  as  he  may  deal 
with  on  account  of  such  principal.  And,  if  an  agent  enters  into 
a  contract  which  is  not  binding  upon  his  principal  because  he 
did  not  authorize  it,  the  agent  will  be  liable  in  damages  to  the 
person  who  dealt  with  him  on  the  faith  that  he  possessed  the 
authority  which  he  assumed;  and  such  liability  is  founded  upon 
an  implied  warranty  by  the  agent  that  he  had  authority,  for 
which  the  remedy  is  by  an  action  for  its  breach.  Baltzen  v. 
Nicolay,  53  N.  Y.  (8  Sick.)  467;  Wliite  v.  Madison,  26  N.  Y.<12 
Smith)  117 ;  Collen  v.  Wright,  8  EIJ.  &  Bla.  647 ;  S.  C,  40  Eng. 
Law  &  Eq.  182. 

Vol.  I.  — 33 


258  AGENCY. 

But,  to  render  the  agent  liable,  the  unauthorized  contract  must 
be  one  that  could  have  been  enforced  against  the  principal  if  the 
agent  had  been  authorized  to  niake  it.  lb.  Dung  v.  Parlcer,  52 
N.  Y.  (7  Sick.)  494.  If  such  contract  is  void  by  the  statute  of 
frauds,  it  cannot  be  enforced  directly  or  indirectly.  lb.  And, 
even  though  the  action  is  in  fraud,  there  can  be  no  recover  j  if  the 
proof  of  such  contract  is  essential  to  maintain  the  action.  lb. 

If  one  falsely  and  fraudulently  asserts  that  he  is  authorized  to 
act  as  the  agent  of  another,  he  will  clearly  be  liable  to  such  per- 
sons as  may  deal  with  him  upon  the  faith  of  his  assertions,  if 
they  suffer  injury  or  damage  in  consequence.  Lander  v.  Castro, 
43  Cal.  497 ;  McCurdy  v.  Rogers,  21  Wis.  197 ;  Duncan  v.  Niles, 
32  111.  532;  Taylor  v.  Shelton,  30  Conn.  122;  Jefts  v.  Tor7c,4: 
Cush.  (Mass.)  371 ;  10  id.  392,  395  ;  Hopkins  v.  Mehaffy,  11  Serg. 

6  R.  129;  Spedding  v.  Newell,  L.  R.,  4  C.  P.  212 ;  Goldwin  v. 
Francis,  L.  R.,  5  C.  P.  295. 

If  a  person  falsely  represents  himself  to  be  the  agent  of  another, 
and  to  have  authority  to  contract  for  him,  and  he  does  so  con- 
tract without  authority,  the  only  remedy  is  by  an  action  against 
him  for  the  fraud  or  deceit.  Noyes  v.  Loring,  58  Me.  208  ; 
Bartlett  v  TucTcer,  104  Mass.  336;  S.  C,  6  Am.  R.  240  ;  McCurdy 
V.  Rogers,  21  Wis.  197.     See  Deceit ;  Fraud. 

But  where  one  undertakes  to  act  as  the  agent  of  another,  in  the 
sincere  belief  that  he  has  authority,  although,  in  fact,  he  has 
none,  he  will  be  liable  to  a  third  party  who  deals  with  him  in 
ignorance  of  his  want  of  authority,  if  he  suffers  loss  in  conse- 
quence, upon  the  ground  of  an  implied  warranty  of  authority. 
White  V.  Madison,  26  N.  Y.  (12  Smith)  117 ;    Collen  v.  Wright, 

7  Ell.  «&  Bla.  301 ;   8  id.  647 ;  S.  C,  40  Eng.  Law  &  Eq.  645; 
Richardson  v.  Williamson,  L.  R.,  6  Q.  B.  276. 

One  who  induces  an  agent  to  exceed  his  authority,  and  to 
enter  into  a  contract  which  is  unauthorized  by  his  principal,  can- 
not hold  the  agent  personally  liable  upon  the  contract.  Aspin- 
wall  V.  Torrance,  1  Lans.  381 . 

§  4.  Not  disclosing  agency.  It  is  the  duty  of  every  person  who 
acts  as  an  agent  for  another,  to  disclose  that  fact  to  the  party  with 
whom  he  deals,  if  he  desires  to  avoid  a  personal  liability  upon 
the  contracts  he  enters  into. 

If,  at  the  time  of  making  a  contract,  he  does  not  disclose  the 
fact  of  his  agency,  but  deals  with  the  other  party  as  though  he 
were  the  principal,  he  may  be  held  personally  liable  upon  his 
contract,  at  the  election  of  the  party  dealing  with  him.     Cottom 


AGENCY.  259 

V.  Holliday^  59  111.  176 ;  Farrell  v.  Campbell^  3  Ben.  8  ;  Bald- 
win V.  Leonard^  39  Vt.  260;  Kelner  v.  Baxter,  L.  R.,  2  C.  P. 
174;  Mauri  v.  Heffernan,  13  Johns.  68;  WinsorY.  Griggs,  5 
Gush.  (Mass.)  210.  A  factor,  broker,  or  other  agent,  who  buys 
goods  in  his  own  name  for  his  principal,  will  be  liable  to  the 
vendor  for  the  price,  if  such  agency  was  not  disclosed.  lb. 

But  the  real  principal,  when  discovered,  may  be  sued  upon 
the  contract,  precisely  as  though  his  name  had  been  disclosed. 
Cole  V.  First  National  Bank  of  Elmira,  63  N.  Y.  (8  Sick.)  388 
Green  v.  SJceel,  2  Hun,  485  ;  S.  C,  5  N.  Y.  S.  C.  (T.  &  C.)  26 
Beehe  v.  Robert,  12  Wend.  413 ;  Carney  v.  JDennison,  16  Vt.  400 
Tabor  v.  Gannon,  8  Mete.  456  ;  Glealand  v.  Walker,  11  Ala.  1059. 

§  5.  Agent's  liability  for  a  foreign  principal.  An  agent  may 
become  responsible  for  the  debts  or  contracts  made  for  a  foreign 
principal,  if  such  agent  assumes  an  express  personal  liability, 
or  by  omitting  to  disclose  his  agency,  and  the  fact  that  he  is  act- 
ing for  such  a  principal. 

In  many  cases  it  is  a  mere  question  of  intention  whether  the 
agent  assumes  a  personal  liability  ;  and  it  is  therefore  a  question 
of  fact  which  is  to  be  ascertained  and  determined  by  the  terms 
of  the  particular  contract,  and  the  surrounding  circumstances. 
Green  v.  KopTce,  18  C.  B.  649  ;  S.  C,  3,  6  Eng.  Law  &  Eq.  396  ; 
OelricTis  v.  Ford,  23  How.  (U.  S.)  49,  65. 

The  mere  fact  that  an  agent  acts  in  behalf  of  a  foreign  princi- 
cipal  is  not,  of  itself,  a  ground  for  imposing  upon  him  a  per- 
sonal responsibility.  "  If,  by  the  language  of  the  contract,  the 
agent  and  not  the  principal  is  bound,  such  must  be  its  construc- 
tion ;  and,  on  the  other  hand,  if  it  clearly  binds  the  principal, 
and  is  in  form  a  contract  with  him  only,  the  agent  must  be 
exonerated,  without  regard  to  the  fact  that  the  principal  is  resi- 
dent in  a  foreign  country."  Bray  v.  Kettell,  1  Allen,  80,  83,  84; 
Kirkpatrick  v.  Stalner,  22  Wend.  244 ;  Maliony  v.  Kekule,  14 
C.  B.  390;  Oelriclis  v.  Ford,  23  How.  (U.  S.)  49,  65. 

Where  the  contract  stipulates  that  the  agent  shall  not  be  bound 
by  it,  he  will  not  be  liable,  although  acting  for  a  foreign  princi- 
pal, whose  name  is  not  disclosed.     Oglesby  v.  Yglesias,  1  Ell 
Bla.  &  El.  930. 

But  where  he  signs  a  written  contract,  he  must  be  careful  to 
see  that  he  binds  his  princ^ipal  and  not  himself.  Paice  v.  Walker, 
L.  R.,  5  Exch.  173,  177  ;  and  see  ante,  238. 

§  6.  Liability  of  agent  who  contracts  in  his  own  name.  A  per- 
son who  enters  into  a  contract  as  an  agent  will  be  personally 


260  AGENCY. 

liable,  whether  he  is  known  to  be  an  agent  or  not,  in  all  cases  in 
which  he  makes  the  contract  in  his  own  name,  or  where  he  volun- 
tarily incurs  a  personal  responsibility,  either  express  or  implied. 
And  if  a  firm  of  agents  give  their  firm  notes,  with  nothing  upon 
them  to  show  that  they  did  not  assume  a  personal  liability,  they 
will  be  treated  as  principals  in  the  notes.  Bnelling  v.  Howard^ 
51  N.  -Y.  (6  Sick.)  373 ;  Collins  v.  Buckeye  Ins.  Co.,  17  Ohio  St. 
215  ;   Woodbury  v.  Blair,  18  Iowa,  572. 

Where  a  check  is  signed  "  A  B,  agent,"  this  does  not  disclose 
the  fact  that  the  drawer  is  the  agent  of  any  one,  and  if  that  is 
the  only  indication  of  his  agency,  he  will  be  personally  bound 
as  the  drawer.  Bickford  v.  First  Nat.  Bank,  Chicago,  49  HI. 
238. 

A  person  who  signs  notes  as  president  of  a  bank  which  has  no 
legal  existence  is  personally  liable  on  them.  Allen  v.  Pegrarrby 
16  Iowa,  163  ;  see  Woodbury  v.  Blair,  18  id.  672. 

In  those  cases  in  which  parol  evidence  is  admissible  to  show 
whether  the  principal  or  the  agent  is  the  responsible  party,  ante, 
229,  the  question  is  one  of  fact  to  be  settled  upon  the  evidence  by 
a  jury,  or  a  court  sitting  in  the  place  of  a  jury.  Cunningham  v. 
Soules,  7  Wend.  106 ;  Coleman  v.  First  Nat.  Bank  of  Elmira^ 
53  N.  Y.  (8  Sick.)  388,  392,  393. 

But  to  charge  the  agent,  it  must  be  shown  aflBrmatively  that 
the  credit  was  given  to  him  exclusively.  Butler  v.  Evening 
Mail  Association,  61  N.  Y.  (16  Sick.)  634. 

AETICLE  IX. 

OF  THE  LIABILITY  OF  PUBLIC  AGENTS  UPON  CONTEACTS  MADE  BY  THEM. 

Section  1.  The  general  rule.  One  who  acts  in  the  capacity  of 
an  agent  for  the  government,  or  for  the  public,  is  not  usually 
liable  personally  upon  contracts  made  by  him,  even  though  he 
would  be  bound  by  such  a  contract,  if  he  were  acting  as  an 
agent  of  a  private  person.  McClellan  v.  Reynolds,  49  Mo.  312. 
A  public  agent  is  protected  from  a  personal  responsibility,  upon 
the  supposition  that  his  office  excludes  the  presumption  that  a^ny 
credit  was  given  to  him  personally,  although  there  may  not  be 
any  other  person  against  whom  a  legal  remedy  lies  to  enforce  the 
contract. 

It  will  not  be  presumed  that  a  public  agent  intends  to  bind 
himself  personally,  nor  that  a  party  who  deals  with  him  in  his 
public  character  means  to  rely  upon  his  individual  responsibil- 


AGENCY.  261 

ity.  Crowell  v.  Orispin,  4  Daly,  100;  Nichols  v.  Moody,  22 
Barb.  611 ;  McGlellan  v.  Reynolds,  49  Mo.  312 ;  Murray  v. 
Car  others,  1  Mete.  (Ky.)  71. 

§  2.  When  a  public  agent  is  not  liable.  A  public  agent,  who  is 
known  to  be  acting  merely  in  that  capacity,  and  who  does  not 
make  himself  liable  by  any  thing  amounting  to  a  personal  con- 
tract, is  not  liable  for  articles  or  things  furnished  upon  his  order. 
A  recruiting  agent,  duly  appointed  for  the  purpose  of  enlisting 
soldiers,  is  not  liable  for  the  payment  of  the  bounty  offered,  nor 
for  the  payment  of  the  value  of  the  soldier's  services.  Hall  v. 
Lauderdale,  46  IS".  Y.  (1  Sick.)  70. 

One  who  makes  a  contract  as  a  public  officer,  and  acts  honestly 
in  that  capacity,  is  not  ordinarily  liable  personally  ;  and,  if  his 
authority  is  defined  by  a  public  statute,  all  who  contract  with 
him  will  be  presumed  to  know  the  extent  of  his  authority,  and 
they  cannot  allege  their  ignorance  as  a  ground  of  charging  him 
with  acting  in  excess  of  his  authority,  unless  he  knowingly  mis- 
leads the  other  party.  Newman  v.  Sylvester,  42  Ind.  106  ;  Mur- 
ray V.  Car  others,  1  Mete.  (Ky.)  71.  And  where  a  statute  limits 
the  amount  of  an  expenditure,  this  is  notice  in  law  and  in  fact 
to  the  contractor  that  the  ofiicers  of  the  government  cannot 
exceed  the  prescribed  bounds.  Curtis  v.  United  States,  2  Nott. 
&  Hun,  Ct.  Claims,  144  ;  Baltimore  v.  Reynolds,  20«Md.  1  ;  State 
V.  Hastings,  10  Wis.  518 ;  Hull  v.  County  of  Marshall,  12  Iowa, 
142. 

A  public  agent  who  contracts  by  a  writing  which  shows  on  its 
face  that  he  is  acting  officially,  is  not  bound  personally  {Fox  v. 
Drake,  8  Cow.  191 ;  McGlellan  v.  Reynolds,  49  Mo.  312),  and  the 
rule  is  the  same,  although  he  does  not  add  his  official  designa- 
tion to  his  signature.  Lyon  v.  Adamson,  7  Clarke  (Iowa),  509. 
A  public  agent  who,  in  his  known  official  capacity,  emploj^s  a 
man  to  work  on  account  of  the  government,  is  not  personally 
liable  for  the  wages  of  the  person  employed.  Walker  v.  Swart- 
wout,  12  Johns.  444  ;  Nichols  v.  Moody,  22  Barb.  611 ;  Randall 
V.  Yan  VecMen,  19  Johns.  60  ;  Perrin  v.  Lyman,  32  Ind.  16. 

A  canal  superintendent,  who  is  known  to  be  acting  as  such,  is 
not  personally  liable  for  work  done  or  materials  found  at  his 
request,  and  on  his  promise  to  pay  for  them,  for  the  repair  of  the 
canals  or  works  therewith  connected,  unless  it  is  manifest  that  it 
was  the  intention  of  the  parties  that  he  should  be  personally  re- 
sponsible. Osborne  v.  Kerr,  12  Wend.  179 ;  West  v.  Jones,  9 
Watts,  27.    So  of  a  contract  by  an  overseer  of  the  poor  of  a  town, 


262  AGENCY. 

for  the  support  of  a  pauper.  Olney  v.  Wickes,  18  Johns.  122.  A 
justice  of  the  peace  who  renders  otficial  services  in  relation  to  the 
support  of  the  poor  of  the  county,  at  the  request  of  the  county 
superintendents  of  the  poor,  cannot  maintain  an  action  against 
them  for  such  services.  Vedder  v.  Superintendents,  etc.,  of 
Schenectady,  5  Denio,  664  ;  see  Hayes  v.  Symonds,  9  Barb.  260. 
No  action  will  lie  against  an  army  officer,  on  his  promise  to  pay 
a  reward  for  apprehending  a  deserter,  where  the  person  perform- 
ing the  service  knew  that  such  promisor  was  a  captain  in  the 
army,  and  acted  as  such  in  offering  the  reward.  Belknap  v. 
Reinhart,  2  Wend.  375  ;  Hodgson  v.  Dexter,  1  Cranch,  345. 

The  rule  which  exempts  such  agents  from  a  personal  liability 
is  the  same  whether  the  contract  be  oral,  in  writing,  or  under 
seal,  where  the  contract  or  instrument  does  not  show  an  inten- 
tion to  assume  a  personal  responsibility.  Fox  v.  Drake,  8  Cow. 
191 ;  Hodgson  v.  Dexter,  1  Cranch,  345,  363,  364 ;  Hodges  v. 
Munyan,  30  Mo.  491 ;  and  see  the  various  cases  that  have  been 
cited  in  this  section. 

No  action  can  be  maintained  against  a  public  agent  who  refuses 
to  pay  over  money  in  his  hands,  although  it  is  demanded  by  one 
to  whom  it  ought  to  be  paid  by  the  principal.  The  agent  is  re- 
sponsible to  no  one  but  his  principal,  and  he  owes  no  legal  duty 
to  a  creditor  of  such  principal.  Hall  v.  Lauderdale,  46  N.  Y. 
(1  Sick.)  70  ;  and  see  Denny  v.  Manhattan  Co.,  2  Denio,  115 ;  5 
id.  639  ;  Colvin  v.  HolbrooTc,  2  N.  Y.  (2  Comst.)  126 ;  Gridley  v. 
Lord  Palmerston,  3  Brod.  &  Bing.  275. 

But,  where  money  is  received  by  a  public  officer  as  a  trustee, 
who  is  directed  by  statute  to  pay  it  over  to  specified  bondholders, 
for  whose  benefit  tho  money  was  raised,  an  action  will  lie  by  such 
bondholders  against  the  officer.  Boss  v.  Curtis,  30  Barb.  238  ;  31 
N.Y.  (4  Tiff.)  606  ;  People  v.  Brown,  55  N.Y.  (10  Sick.)  180  ;  Mur- 
doch V.  Aiken,  29  Barb.  59  ;  25  How.  594,  n;  31  N.Y.  (4  Tiff.)  609. 

§  3.  When  a  public  agent  is  lialble  upon  contracts.  While 
there  is  a  presumption  that  a  public  officer  or  agent  does  not 
intend  to  assume  a  personal  liability  upon  contracts  entered  into 
by  him  in  the  capacity  of  agent,  he  may,  if  he  chooses,  make  a 
contract  which  will  bind  him  personally.  And  where  a  public 
government  officer  makes  an  express  personal  promise  to  pay  for 
services  rendered  to  the  government,  he  will  be  personally  liable. 
Gill  V.  Brown,  12  Johns.  385 ;  King  v.  Butler,  15  id.  281 ; 
Copes  v.  Matthews,  10  Sm.  &  Marsli.  398. 

Where  it  does  not  appear  that  an  agent,  in  making  a  contract. 


AGENCY.  263 

acted  expressly  or  ostensibly,  as  a  public  agent,  it  will  be  deemed 
a  private  contract,  upon  which  the  agent  will  be  liable.  Swift  v. 
Hopkins,  13  Wend.  313 ;  Van  Boeoenbergli  v.  HashroucTc,  45 
Barb.  197. 

But,  where  it  is  sought  to  charge  a  public  officer  or  agent  with 
a  personal  responsibility,  the  facts  and  circumstances  ought  to 
be  such  as  to  show  clearly  that  both  parties  acted  upon  the 
assumption  that  a  personal  liability  was  undertaken.  lb.  Gill 
V.  Brown,  12  Johns.  385  ;  King  v.  Butler,  15  id.  281 ;  Murrcuy 
V.  Kennedy,  15  La.  Ann.  385. 

The  question  to  whom  the  credit  was  given  is  one  of  fact  to  be 
settled  by  a  jury,  in  all  cases  where  the  terms  of  the  contract  do 
not  clearly  determine  or  declare  whether  a  personal  liability  is 
assumed.  Cunningham  v.  Soules,  7  Wend.  106  ;  HammarsTcold 
V.  Bull,  9  Rich.  484  ;  Brown  v.  Eundlett,  15  N.  H.  360. 

If  a  person  assumes  to  act  as  a  public  officer  or  agent,  when  he 
has  no  such  authority,  and  he  enters  into  a  contract  which  does 
not  bind  his  professed  or  pretended  principal,  he  will,  as  in 
other  cases  of  an  unwarranted  or  assumed  agency,  be  personally 
liable.    Ante,  257 ;  Res  v.  Hulet,  12  Yt.  314. 

§  4.  Liability  of  gOYernment  or  principaL  The  difference 
between  the  liability  of  an  individual  as  a  principal,  and  that  of 
the  government  as  principal,  is,  that  the  former  is  liable  to  the 
extent  of  the  authority  he  has  apparently  given  to  his  agent, 
while  the  latter  is  liable  only  to  the  extent  of  the  power  actually 
conferred  upon  its  officer  or  agent.  Pierce  v.  United  States, 
1  Nott  &  Hun,  Ct.  Claims,  270 ;  Lee  v.  Munroe,  7  Cranch,  366. 


ARTICLE  X. 

LIABILITY  OF  AGENTS  FOR  TORTS. 

Section  1.  Of  their  liability  in  general.  In  discussing  the 
liabilities  of  an  agent  to  third  persons,  for  the  torts  or  wrongs  of 
the  agent,  it  is  important  to  distinguish  between  acts  of  misfeas- 
ance or  positive  wrongs,  and  nonfeasances  or  mere  omissions  of 
duty  by  the  agent.  The  general  rule  of  the  common  law  is,  that 
a  servant  who,  by  negligence  in  the  discharge  of  his  duties, 
injures  a  third  person,  he  will  not  be  personally  liable  to  such 
third  person  for  the  injuries  done.  Golmn  v.  HolbrooJc,  2  N.  Y. 
(2  Comst.)  126,  129  ;  Hall  v.  Lauderdale,  46  N.  Y.  (1  Sick.)  70 ; 
Denny  v.  Manhattan  Co.,  5  Denio,  639  ;  2  id.  115. 


264  AGENCY. 

The  injured  party  is  not  without  remedy  in  such  a  case,  for  the 
principal  is  liable  to  third  persons  for  the  misfeasances,  negli- 
gences, and  omissions  of  duty  of  the  agent,  in  all  cases  and 
matters  within  the  scope  of  his  employment.  Burns  v.  Poulsom^ 
L.  R.,  8  C.  P.  563  ;  Whatman  v.  Pearson,  3  id.  422  ;  Keeiiey  v. 
Grand  Trunk  Railway  Co.,  69  Barb.  104 ;  47  N.  Y.  (2  Sick.) 
526;  AWiorfY.  Wolfe,  22  N.  Y.  (8  Smith)  355. 

A  principal  is  liable  to  an  action  for  the  fraudulent  misrepre- 
sentation of  his  agent,  while  acting  in  the  course  of  his  business. 
Barwick  v.  English  Joint-Stock  Bank,  L.  E,.,  2  Exch.  259. 

The  master  and  owner  of  a  ship  are  responsible  for  the  goods 
which  they  have  undertaken  to  carry,  if  they  are  stolen  or 
embezzled  by  the  crew,  or  by  any  other  person  ;  and  although 
no  fault  or  negligence  is  imputable  to  them.  Schieffelin  v.  Har- 
vey, 6  Johns.  170. 

A  telegraph  company  is  liable  for  the  negligence  of  its  agents 
or  operatives,  in  the  transmission  of  messages.  New  York  & 
Washington  Printing  Tel.  Co.  v.  Dryhurg,  35  Penn.  St.  298 ; 
Dunning  v.  Roberts,  35  Barb.  463 ;  Birney  v.  Washington 
Printing  Tel.  Co.,  18  Md.  341. 

The  authorities  enforce  the  maxim  respondeat  superior,  in 
those  cases  in  which  an  agent  is  acting  within  the  scope  of  his 
authority,  and  in  pursuance  of  his  principal's  directions,  but 
where,  by  his  ignorance,  unskillfulness,  or  negligence,  he  causes 
an  injury  to  a  third  person ;  for  such  acts  of  the  agent,  the 
principal  is  liable,  but  no  action*  lies  against  the  agent  by  such 
third  person. 

The  agent  may,  however,  be  responsible  to  his  principal  for 
the  loss  sustained  by  him  in  responding  to  third  persons  for  his 
negligent  acts. 

§  2.  When  agent  is  liable  to  third  persons.  An  agent  who 
knowingly  exceeds  his  authority,  or  who  intentionally  deviates 
from  it,  and  willfully  injures  the  person  or  property  of  another, 
will  be  personally  liable  for  the  consequences.  Elmore  v.  Brooks, 
6  Heisk.  (Tenn.)  45  ;  Wright  v.  Eaton,  7  Wis.  695  ;  Richardson 
V.  Kimball,  28  Me.  463. 

If  the  principal  neither  autliorized,  nor  has  ratified,  a  willful 
trespass  which  has  been  committed  by  one  employed  as  his  agent, 
he  will  not  be  liable  for  the  agent' s  wrongful  acts.  Vanderbilt  v. 
Richmond  Turnpike  Co.,  2  N.  Y.  (2  Oomst.)  479 ;  Isaacs  y. Third 
Avenue  R.  R.  Co.,  47  N.  Y.  (2  Sick.)  122 ;  7  Am.  Rep.  418. 

While  an  agent  is  protected  as  to  lawful  acts  done  within  the 


AGENCY.  265 

scope  of  his  authority,  ante^  240,  263,  265,  this  is  not  tlie  rule 
when  he  does  an  illegal  act,  even  by  the  direction  of  his  principal ; 
for,  the  principal  himself  is  liable  for  an  unlawful  act,  and  he  can- 
not confer  upon  another  an  authority  which  he  himself  does  not 
possess. 

In  such  a  case,  the  agent  is  under  no  obligation  to  his  princi- 
pal which  will  require  him  to  do  an  unlawful  thing  ;  and,  there- 
fore, if  he  does  an  unlawful  thing,  even  by  the  command  of  his 
principal,  he  will  be  liable  for  the  injuries  done  to  third  persons, 
in  the  same  manner  that  he  would  have  been  responsible  if  no 
command  or  direction  had  been  given  by  the  principal.  WrigM 
V.  Eaton,  7  Wis.  595 ;  Richardson  v.  Kimball,  28  Me.  463 ; 
Elmore  v.  Brooks,  6  Heisk.  (Tenn.)  45;  Ford  v.  Williams,  24 
N.  Y.  (10  Smith)  359;  Bitmap  v.  Marsh,  13  111.535  ;  Perminter 
V.  Kelly,  18  Ala.  716;  Gaines  v.  Briggs,  4  Eng.  (9.  Ark.)  46; 
Josselyn  v.  McAllister,  22  IStich.  300;  Thorp  v.  Burling,  11 
Johnsr285;  Spraights  v.  Hawley,  39  N.  Y.  (12  Tiff.)  441  ;  7 
Trans.  App.  14  ;  40  Barb.  397. 

An  agent  is  liable,  under  some  circumstances,  for  the  acts  of 
other  persons  employed  by  him  as  assistants,  in  the  performance 
of  his  own  contracts  or  duties  toward  his  principal.  And, 
where  an  agent  enters  into  a  contract  to  do  some  particular  act 
or  thing,  he  will  be  liable  for  the  trespass,  frauds,  and  misfeas- 
ances of  those  whom  he  may  employ  as  assistants,  in  the  per- 
formance of  such  act  or  thing.  A  common  carrier  of  passengers, 
for  instance,  is  held  to  have  contracted  for  the  proper  treatment 
of  passengers,  as  well  as  for  their  transportation  ;  and  he  is 
therefore  liable  for  the  acts  of  such  persons  as  he  may  employ 
in  the  business  ;  and,  if  such  persons  willfully  insult  or  injure 
passengers,  the  carrier  is  responsible  in  damages.  Seymour  v. 
Greenwood,  7  H.  &  N.  355  ;  Bayley  v.  Manchester,  etc..  Railway 
Co.,  L.  R.,  7  C.  P.  415  ;  Goddard  v.  Grand  Trunk  Railway,  57 
Me.  202  ;  2  Am.  Rep.  39  ;  Bryant  v.  Rich,  106  Mass.  ISO ;  8 
Am. 'Rep.  311  ;■  Pittsburg,  etc.,  R.  R.  Co.  v.  Slusser,  19  Ohio  St. 
157,  162 ;  Weed  v.  Panama  R.  R  Co.,  17  N.  Y.  (3  Smith)  362  ; 
Day  V.  Owen,  5  Mich.  520  ;  CraJcer  v.  R.  R.,  36  Wis.  657 ; 
17  Am.  Rep.  504.  And,  in  this  respect,  the  law  especialh^  pro- 
tects female  passengers.  Craker  v.  R.  R.,  36  Wis.  659  ;  17  Am. 
Rep.  504  ;  Mcto  v.  Clark,  1  Clif.  145  ;  Chamberlain  v.  Chandler, 
3  Mas.  242. 

A  bank  which  receives  notes  for  collection  is  liable  for  the 
acts  or  omissions  of  its  agents,  or  of  other  banks  to  whom  the 
Vol.  I.— 34 


266  AGENCY. 

notes  may  be  transmitted  by  it  for  collection.  Montgomery 
County  BanJc  v.  Albany  City  Bank,  7  IST.  Y.  (3  Seld.)  459  ; 
Ayrault  v.  Pacific  Bank,  47  N.  Y.  (2  Sick.)  570 ;  7  Am.  Rep. 
489  ;  see  Bank  of  Kentucky  v.  Schuylkill  Bank,  1  Pars.  Eq.  Cas. 
226.  A  bailee  who  undertakes,  to  keep  money  safely,  is  liable 
for  the  acts  or  neglects  of  his  servants,  in  respect  to  such  deposits. 
Clark  V.  Bank  of  Wheeling,  17  Penn.  St.  322  ;  Taher  v.  Parrott^ 
2  Gall,  m^ ;  Ray  v.  Bank,  10  Bush  (Ky.),  344. 

A  mercantile  agency,  or  an  attorney,  who  receives  accounts, 
bills,  notes,  or  demands  for  collection,  will  be  responsible  to  the 
depositor,  for  any  acts,  frauds,  omissions,  or  negligences  of  any 
person  or  agent  to  whom  such  bills,  notes,  etc.,  may  be  sent,  or 
with  whom  they  may  be  left  for  collection,  by  the  party  employed 
by  such  depositor.  Bradstreet  v.  Eoerson,  T2  P§nn.  St.  124 ; 
Lewis  V.  Peck,  10  Ala.  142  ;  Pollard  v.  Rowland,  2  Blackf.  22 ; 
Cummins  v.  IP  Lain,  2  Pike  (Ark.),  402  ;  Wilkinson  y.  Oriswold, 
12  Sm.  &  Marsh.  669 ;  ante,  249,  art.  6,  §  1. 

§  3.  Agent  when  not  lial>le  for  torts.  An  agent  who  is 
engaged  in  the  performance  of  lawful  acts,  and  who  does  not 
exceed  the  authority  conferred  upon  him,  will  not,  as  a  general 
rule,  be  personally  liable  to  third  persons  for  his  acts,  or  neglects. 
Ante,  263,  §  1.  So  it  has  been  seen,  ante,  266,  that  he  is  not 
liable  upon  his  contracts,  unless  he  assumes  a  personal  liability. 

§  4.  Principal  not  liable  for  agent's  willful  torts.  Although  a 
principal  is  liable  for  the  negligence  of  his  agent,  when  acting 
within  the  scope  of  his  authority,  ante,  263,  and  in  some  cases 
for  his  willful  or  malicious  acts,  ante,  265,  §  2 ;  yet  the  general 
rule  is,  that  a  principal  is  not  responsible  for  the  acts  of  an 
agent  who  exceeds  his  authority,  and  willfully  does  an  injury  to 
the  person  or  property  of  another.  Yanderhilt  v.  Richmond 
Turnpike  Co.,  2  N.  Y.  (2  Comst.)  497 ;  Isaacs  v.  Third  Avenue 
R.  R.  Co.,  47  N.  Y.  (2  Sick.)  122 ;  7  Am.  Rep.  418. 

But,  if  a  principal  ratifies,  or  takes  advantage  of  his  agent's 
tortious  acts,  he  will  ,be  liable,  whether  such  torts  be  willful  or 
fraudulent.  Durst  v.  Burton,  47  N.  Y.  (2  Sick.)  167  ;  7  Am.  Rep. 
428  ;  Woodward  v.  Wehh,  Q5  Penn.  St.  254  ;  Priester  v.  Augley, 
6  Rich.  14  ;  Exum  v.  Bristor,  35  Miss.  391 ;  Wallace  v.  Morgan, 
23  Ind.  399. 

A  principal  cannot  enforce  a  contract  which  his  agent  has 
fraudulently  obtained,  even  though  he  neither  authorized  nor 
had  notice  of  the  fraud  prior  to  the  execution  and  delivery  of  the 
contract.     Cassard  v.  Rinman,  8  Bosw.  8 ;  Concord  Bank  v. 


AGENCY.  267 

Oregg,  14  N.  H.  331 ;  RoUnson  v.  Bealle,  20  Ga.  275 ;  Wright 
V.  Calhoun,  19  Tex.  412. 

§  5.  Liability  of  public  agents  for  torts.  It  is  a  general  rule, 
that  the  government  is  not  responsible  for  the  misfeasances, 
wrongs,  negligences,  or  omissions  of  duty  of  the  subordinate 
officers  or  agents  employed  in  the  public  service.  And  this  rule 
of  exemption  from  liability  extends  so  far  that  public  officers 
and  agents  are  not  liable  for  the  misfeasances  or  positive  vrrongs, 
or  the  nonfeasances  or  negligences,  of  the  sub-agents,  or  ser- 
vants, or  other  persons  properly  employed  by  and  under  them, 
in  the  discharge  of  their  official  duties.  The  postmaster-general 
is  not  liable  for  any  default,  negligence,  or  misfeasance  of  any 
of  the  deputies  or  clerks  employed  under  him  in  his  office. 
Lane  v.   Cotton,  1  Ld.  Raym.  646  ;  12  Mod.  482. 

A  contractor  for  the  transportation  of  the  public  mail  is  not 
liable  for  money  inclosed  in  a  way-letter,  and  lost  by  the  neglect 
of  the  mail  carrier  employed  by  him  on  the  route.  Hutchins  v. 
Brackett,  22  N.  H.  252  ;  Conwell  v.  Voorhees,  13  Ohio,  523.  The 
mail  carrier  is  not  an  officer  of  the  government,  but  the  private 
agent  of  the  contractor,  who  is  liable  to  third  persons  for  injuries 
sustained  by  them  through  the  negligence  or  default  of  such 
agent  in  the  performance  of  his  duties.  Sawyer  v.  Corse,  17 
Gratt.  230. 

An  action  will  not  lie  against  a  postmaster  for  the  purloining 
of  a  letter  by  his  sworn  assistants,  who  was  appointed  and 
retained  in  good  faith.  Schroyer  v.  Lynch,  8  Watts,  453 ;  Wig- 
gins V.  Hathaway,  6  Barb.  632.  But  see  Coleman  v.  Frazier, 
4  Rich.  146. 

But  he  will  be  liable  for  the  acts  of  one  whom  he  permits  to 
have  the  care  and  custody  of  the  mail,  in  his  office,  where  such 
person  has  not  been  sworn  according  to  law.  Bishop  v.  Wil- 
liamson, 11  Me.  495  ;  Christy  v.  Smith,  23  Vt.  663.  And  it  has 
been  held  that  an  assistant  postmaster  is  not  an  officer  of  the 
government,  but  a  mere  servant  or  agent  of  the  postmaster,  who 
is  liable  in  a  civil  action  for  the  negligence  of  the  assistant,  by 
means  of  which  a  letter  containing  money  is  stolen  from  the 
office.  Coleman  v.  Frazier,  4  Rich.  146 ;  and  see  Bolan  v.  Wil- 
liamson, 1  Brev.  181  ;  2  Bay,  551 ;   Christy  v.  Smith,  23  Vt.  663. 


268  AGENCY. 

ARTICLE  XI. 

OF  THE   EIGHTS  OF  AGENTS  lif   REGARD  TO  THEIR   PRIiq"CIPALS. 

Section  1.  In  general.  The  general  duties  of  an  age^t,  and 
his  obligations  to  his  principal,  as  well  as  his  liabilities  to  third 
persons,  having  been  sufficiently  noticed,  it  remains  to  consider 
some  of  the  rights  of  an  agent  in  regard  to  his  principal.  These 
subjects  will  be  separately  considered  in  the  several  following 
sections. 

§  2.  Compensation  of  agent.  A  duly  authorized  agent,  who 
renders  services  for  his  principal  in  accordance  with  the  employ- 
ment he  undertakes,  is,  as  a  general  rule,  entitled  to  a  reasonable 
compensation,  if  there  is  no  express  agreement  upon  that  sub- 
ject.    Mangum  v.  Ball,  43  Miss.  288. 

An  agreement  to  pay  an  agent  for  his  services  a  certain  amount 
"  in  equal  quarterly  payments"  is  a  contract  for  a  year,  and  an 
action  lies  for  the  stipulated  salary  if  the  agent  is  dismissed 
without  cause  before  the  expiration  of  the  year.  Kirk  v.  Hart- 
man,  63  Penn.  St.  97. 

Where  an  agent  is  employed  under  a  contract  for  a  specified 
time,  at  an  agreed  salary,  and  he  continues  in  such  employment 
after  the  expiration  of  the  agreed  time,  he  will  be  entitled  to  the 
same  rate  of  compensation  for  the  additional  time.  Vail  v.  Jer- 
sey Little  Falls  Manvf.  Co.,  32  Barb.  564.  A  continuance  in 
the  employment  of  the  hirer,  with  his  consent,  after  the  comple- 
tion of  the  first  contract,  is  equivalent  to  a  new  hiring  upon  the 
same  terms.  lb.  If  a  hirer  does  not  carry  on  his  business  for 
a  part  of  the  time,  and  thus  has  nothing  for  the  agent  to  do  dur- 
ing that  period,  this  will  not  aflTect  the  construction  of  the  con- 
tract, or  the  liabilities  of  the  parties.  lb. 

The  compensation  of  an  agent  may  be  by  salary,  or  by  com- 
missions. Where  the  compensation  is  to  be  by  salary,  the  con- 
tract is  one  for  a  specified  period  of  time  for  a  definite  sum; 
where  compensation  is  by  commissions,  the  payment  depends 
upon  the  performance  of  specified  conditions  or  transactions. 

An  agent  employed  at  a  specific  salary  is  entitled  to  payment 
at  the  agreed  sum,  even  though  the  employer  does  not  furnish 
full  employment.  Vail  v.  Jersey  Little  Falls  Manuf.  Co.,  32 
Barb.  564. 

So  where  an  employer  agrees  to  furnish  employment  to  another 
for  a  certain  time,  at  a  specified  compensation,  and  he  discharges 


AGENCY.  269 

him  without  cause,  before  the  expiration  of  the  time,  he  is  in 
general  bound  to  pay  the  full  amount  of  wages  for  the  whole 
time.  Costigan  v.  Mohawk  &  Hudson  R.  R.  Co.,  2  Denio,  609; 
CoTburn  v.  Woodworth,  31  Barb.  381;  Decker  v.  Hassel,  26  How. 
528. 

If  a  principal,  who  has  an  agent  in  his  employ,  at  a  fixed  sal- 
ary, confers  upon  him  additional  powers  which  involve  greater 
duties,  with  no  stipulation  for  additional  compensation,  the 
agent  cannot  recover  extra  wages  for  such  additional  service. 
Moreau  v.  Dumagene,  20  La.  Ann.  230;  Marshall  v.  Parsons,  9 
C.  &  P.  656;  Gratiot  v.  United  States,  4  How.  (U.  S.)  80;  United 
States  V.  Buchanan,  8  id.  83;  United  States  v.  Broion,  9  id.  487, 
500. 

How  far  custom  will  change  the  rule  may  not  be  entirely  set- 
tled. See  United  States  v.  McDonald,  7  Peters,  1;  United  States 
V.  Fillebrown,  id.  28. 

Where  there  is  an  express  agreement  as  to  the  amount  of  com- 
pensation or  salary  to  be  paid  by  the  principal  to  the  agent,  that 
will  control,  and  the  contract  cannot  be  varied  by  custom  or 
usage  of  trade,  or  by  any  implied  agreement,  ante,  127  ;  Bower 
V.  Jones,  8  Bing.  65. 

••In  the  absence  of  an  express  agreement,  the  agent  may  recover 
the  usual  or  fair  and  just  compensation  which  the  law  gives  in 
such  cases.    Mangum  v.  Ball,  43  Miss.  288. 

If  services  are  rendered  gratuitously,  as  by  a  friend,  neighbor, 
or  relative,  without  any  stipulation  as  to  compensation,  and 
without  intending  to  make  any  charge  for  them,  a  claim  cannot 
afterward  be  enforced  by  action  for  such  services.  HUl  v.  Wil- 
liams, 6  Jones'  Eq.  (N.  C.)  242;  Bartholomew  v.  Jackson,  20 
Johns.  28;  Ehle  v.  Judson,  24  Wend.  98. 

Services  are  sometimes  rendered  upon  a  mutual  understand- 
ing that  they  are  to  be  compensated  by  a  provision  in  the  will 
of  the  party  for  whom  they  are  performed ;  and,  in  such  a  case, 
if  no  provision  is  made  by  will,  an  action  will  lie  to  recover  the 
value  of  such  services.  Robinson  v.  Raynor,  28  N.  Y.  (1  Tiff.) 
494;  Quackenbush  v.  Ehle,  5  Barb.  469;  Martin  v.  Wright's 
Admrs.,  13  Wend.  460;  Bayliss  v.  Pricture,  24  Wis.  651;  Jil- 
son  V.  Gilbert,  26  id.  337;  7  Am.  Rep.  100. 

A  very  common  mode  of  making  compensation  for  an  agent's 
services  is  by  commissions.  There  may  be  an  express  agreement 
as  to  their  amount,  which  is  usually  a  percentage  upon  the  value 
or  amount  of  business  done,  such,  for  instance,  as  the  value  of 


270  AGENCY. 

the  goods  bought  or  sold  within  a  specified  time,  or  during  the 
course  of  the  agency.  Marshall  v.  Parsons,  9  C.  &  P.  656; 
Bower  v.  Jones,  8  Bing.  Q5\  Stewart  v.  Mather,  32  Wis.  344; 
Barnstein.  v.  Lans,  104  Mass.  214. 

In  the  absence  of  an  express  agreement  as  to  the  rate  or 
amount  of  the  commissions,  it  may  be  established  by  the  cus- 
tom or  usage  of  the  trade,  at  the  place,  or  in  the  business,  where 
the  agent  is  employed.  Eicke  v.  Meyer,  3  Camp.  412;  Cohen  v. 
Payet,  4  Camp.  96;  Roberts  v.  Jackson,  2  Stark.  (N.  P.)  225; 
Peed  V.  Pann,  10  B.  &  C.  438. 

If  there  be  no  express  agreement,  and  no  controlling  custom, 
then  the  value  of  the  services  will  be  assessed  upon  the  princi 
pie  of  paying  what  they  are  fairly  worth  under  the  circumstan- 
ces of  the    particular    case.    Mangum  v.  Ball,  43  Miss.  288; 
Briggs  v.  Boyd,  m  N.  Y.  (11  Sick.)  289,  295. 

§  3.  Service  before  payment.  Where  the  compensation  is  to 
be  paid  by  way  of  commissions,  the  general  rule  is,  that  the 
whole  service  or  duty  must  be  performed,  before  any  right  to 
commissions  arises.  McGaxiocTc  v.  Woodlief,  20  How.  (U.  S.) 
221;  Walker  v.  Tirrell,  101  Mass.  257;  3  Am.  Kep.  352;  Earp  v. 
Cummins,  54  Penn.  St.  394;  Satterthwaite  v.  Vreeland,  3  Hun, 
152;  5  N.  Y.  S.  C.  (T.  &  C.)  363;  48  How.  508. 

An  agent  may,  under  some  circumstances,  recover  pay  for 
what  he  has  done,  even  though  the  service  undertaken  has  not 
been  completed,  if  the  act  of  the  principal  has  prevented  the 
performance  of  it.  Briggs  v.  Boyd,  5Q  N.  Y.  (11  Sick.)  289, 
294;  Purkee  v.  Vermont  Central  Railway  Co.,  27  Vt.  127;  Gil- 
lespie V.  Wilder,  99  Mass.  170. 

An  agent  or  broker  who  undertakes  to  sell  property  for  an- 
other for  a  certain  commission  has  earned,  and  may  recover,  his 
commission,  when  he  finds  a  purchaser  willing  to  purchase  at 
the  price  fixed,  even  though  the  sale  was  never  completed,  where 
the  failure  to  complete  it  was  in  consequence  of  a  defect  of  title, 
or  other  cause  produced  by  the  act,  omission  or  fault  of  the  ven- 
dor, without  any  fault  on  the  part  of  the  agent  or  broker.  Poty 
V.  Miller,  43  Barb.  529;  Keys  v.  Johnson,  68  Penn.  St.  42; 
Glentworth  v.  Luther,  21  Barb.  145;  Simonson  v.  Kissick,  4 
Daly,  143;  Tyler  v.  Parr,  52  Mo.  249;  Jones  v.  Adler,  34  Md. 
440 ;  Phelan  v.  Gardner,  43  Cal.  306;  Lincoln  v.  McClatchie,  36 
Oonn.  136. 

And  if  the  principal  makes  a  sale  of  the  property  to  a  person 
who  was  induced  to  make  the  purchase  by  the  acts  of  the  agent, 


AGENCY.  271 

he  will  be  entitled  to  liis  commission,  as  the  principal  will  not 
be  permitted  to  evade  the  payment  of  what  is  justly  due  for 
services  fully  and  fairly  performed  by  the  agent  so  far  as  he  was 
permitted  by  the  principal.  lb. . 

§  4.  Faithful  discharge  of  duty  before  payment.  An  agent  is 
not  only  bound  to  perform  his  contract  according  to  its  terms, 
but  he  must  also  conduct  himself  with  entire  good  faith  toward 
his  principal. 

And,  if  he  is  employed  in  the  performance  of  a  particular 
business  transaction,  in  which  he  is  guilty  of  bad  faith  toward 
his  principal,  he  will  forfeit  his  commissions.  Sumner  v.  Reicke- 
niker^  9  Kansas,  320;  Porter  v.  Seiners,  35  Ind.  295;  Vennum  v. 
Gregory,  21  Iowa,  326;  Segar  v.  Parrish,  20  Gratt.  672;  Ever- 
heart  v.  Searle,  71  Penn.  St.  256. 

And,  where  the  conduct  of  the  agent  is  not  such  as  to  deprive 
him  entirely  of  compensation,  his  conduct  will  be  carefully  scru- 
tinized by  the  courts,  which  will  fully  protect  the  principal' s  inter- 
ests and  rights.  Gallup  v.  Merrill,  40  Vt.  133;  Sampson  v.  Somer- 
set IronWorks,  6  Gray,  120;  Jones  v.  Hoyt,  25  Conn.  374;  Wood- 
ward V.  Suydam,  11  Ohio,  362. 

§  5.  Adverse  interests,  or  acting  for  two  parties.  It  has  been 
seen,  ante,  245,  that  an  agent  is  not  permitted  to  act  in  a  man- 
ner which  is  adverse  to  the  interests  of  his  principal. 

And,  if  he  agrees  separately  with  each  of  the  parties  for  a 
compensation  from  each,  without  the  knowledge  of  his  principal, 
he  will  not  be  permitted  to  recover  any  compensation  from  either 
of  them.  EnerTieart  v.  Searle,  71  Penn.  St.  256;  Place  v.  Green- 
man,  6  N.  Y.  S.  C.  (T.  &  C.)  681;  4  Hun,  660;  but  see  Rupp  v. 
Sampson,  16  Gray,  398 ;  cited,  ante,  248,  §  12,  with  other  cases, 
in  which  it  is  held  that  one  who  acts  as  a  mere  middleman,  and 
not  as  an  agent,  may  recover  such  compensation  as  is  promised 
to  him.  If  an  agent  acts  for  both  parties  in  making  a  contract, 
the  contract  is  not  void,  but  voidable,  and  if  the  principal  would 
repudiate  it,  he  must  do  so  within  a  reasonable  time.  Green- 
wood V.  Spring,  54  Barb.  375. 

§  6.  Reimbursement  and  Indemnity  of  agents.  An  agent  is 
entitled  to  claim  from  his  principal  a  reimbursement  for  all  ad- 
vances, expenses,  and  disbursements  made  by  him  in  the  course 
of  his  agency,  for  the  benefit,  or  on  account  of  his  principal,  if 
Buch  advances  or  expenses  are  reasonable  and  just.  Ramsay 
V.  Gardner^  11  Johns.  439;  Colley  v.  Merrill,  6  Greenl.  50;  Gid- 
dings  v.  Sears,  103  Mass.  311;   Wynkoop  v.  Seal^  64  Penn.   St. 


272  AGENCY. 

361;  Mears  v.  Adreon,  31  Md.  229;  McCrosJcey  v.  Mdbey^  45 
Ga.  827. 

So  where  an  agent  who  is  acting  in  good  faith,  and  without 
fault,  in  the  proper  service  of  his  principal,  is  subjected  to  expense, 
or  is  sued  on  a  contract  made  by  him,  or  for  an  act  done  pursu- 
ant to  his  authority,  the  principal  is  bound  by  law  to  indemnify 
and  reimburse  him  for  the  expense.  Powell  v.  Trustees  of  New- 
hurg,  19  Johns.  284;  Howe  v.  Buffalo,  JY.  Y.  &  Erie  R.  B.  Co., 
37  N.  Y.  (10  Tiff.)  297;  4  Trans.  App.  249;  Turner  v.  Jones,  1 
Lans.  147;  StorTcing  v.  Sage,  1  Conn.  519;  Delaware  Ins.  Co.  v. 
Delaunie,  3  Binn.  295. 

But,  if  an  agent  needlessly,  officiously,  and  without  authority, 
makes  advances,  or  incurs  expenses,  he  will  not  be  entitled  to 
reimbursement.  Pickering  v.  Demerritt,  100  Mass.  416 ;  Day 
V.  Holmes,  103  id.  306;  Howard  y.  Tucker,  1  B.  &  Ad.  772. 

§  7.  Loss  or  damage  sustained  for  principal.  Where  dama- 
ges are  incurred,  or  losses  are  sustained  by  an  agent,  without 
his  fault,  in  the  management  or  transaction  of  his  principal's  busi- 
ness, or  in  following  his  instructions,  the  principal  must  sustain 
the  loss  or  damage,  and  indemnify  the  agent  if  he  has  been  com- 
pelled to  pay  them.  D  Arcy  v.  Lyle,  5  Binn.  441-455;  1  Am.  Lead. 
Cas.  856,  (711) ;  ante,  241,  244,  §  6.  If  an  agent,  in  consequence  of 
a  deception  practiced  on  him  by  his  principal,  innocently  incurs  a 
risk  or  responsibility,  and  is  compelled  to  pay  damages  to  a  pur- 
chaser in  consequence,  he  will  be  entitled  to  reimbursement  from 
his  principal.  Yeatman  v.  Corder,  38  Mo.  337.  So  an  agent 
may  recover  from  his  principal  damages  sustained  in  defending 
a  suit  on  the  principal's  behalf,  if  the  agent  was  acting  within 
the  scope  of  his  authority,  and  the  loss  arose  from  the  fact  of 
the  agency,  and  without  any  fault  or  laches  on  his  part.  Frix- 
ione  V.  Tagliaferro,  34  Eng.  Law  &  Eq.  27;  10  E.  F.  Moore  (P.  C), 
175.  And  it  is  not  material  that  the  agent  exceeded  his  instruc- 
tions, if  the  excess  was  expressly  waived  by  the  principal.  lb. 

If  an  agent  commits  a  trespass  or  does  any  other  wrong  to  the 
property  of  a  third  person,  by  the  direction  of  his  principal, 
without  any  knowledge  or  suspicion  at  the  time,  that  the  act  is  a 
trespass  or  wrong,  but  he  acts  in  good  faith  in  the  matter,  he  will 
be  entitled  to  a  reimbursement  from  his  principal  of  all  the  dam- 
ages he  has  sustained  in  consequence  of  such  acts.  Adamson  v. 
Jarvis,  4  Bing.  66;  Powell  v.  Trustees  of  Newhurg,  19  Johns. 
284  ;  Coventry  v.  Barton,  1 7  id.  142 ;  Amry  v.  Halsey,  14  Pick. 
174 ;  Oower  v.  Emery,  18  Me.  79. 


AGENCY.  273 

Any  loss  growing  out  of  tlie  use  of  the  principal's  fund,  in 
pursuance  of  liis  directions,  will  fall  on  tlie  principal  and  not 
upon  the  agent.    Hamilton  v.  Cook  County^  4  Scam.  (111.)  519. 

To  entitle  an  agent  to  claim  a  remuneration  from  his  principal, 
for  a  loss  sustained  by  the  agent,  he  must  have  been  acting 
strictly  in  the  place  of  the  principal,  in  accordance  with  his  will, 
and  the  business  must  be  that  of  the  principal,  and  not  that  of 
the  agent.  CorMn  v.  American  Mills^  27  Conn.  274;  Saxeland 
V.  Green,  36  Wis.  612. 

§  8.  Illegal  acts.  Where  the  instructions  or  orders  of  a  prin- 
cipal are  illegal,  and  are  known  by  the  agent  to  be  such,  he  can- 
not maintain  an  action  against  the  principal  for  indemnity  as  to 
such  acts  as  are  done  under  such  orders  or  instructions.  Trus- 
tees of  Newburg  v.  Oalatian,  4  Cow.  340 ;  St.  John  v.  St.  JoTirCs 
CfhurcTi,  15  Barb.  346;  see,  also,  Illegality  ;   Indemnity. 

§  9.  Power  of  agent  to  pledge  goods.  At  common  law,  and 
independently  of  a  statutory  authority  to  the  contrary,  an  agent 
has  no  authority  to  pledge  or  to  sell  his  principal' s  property  for 
the  debts  of  such  agent.  Bonito  v.  Mosquera,  2  Bosw.  401; 
Van  Amringe  v.  Peabody,  1  Mason,  440;  Warner  v.  Martin, 
11  How.  (U.  S.)  209,  224 ;  Parsons  v.  Webh,  8  Greenl.  38;  Morris 
V.  Watson,  15  Minn.  212;  Foss  v.  Robertson,  46  Ala.  483;  see 
further,  Lausatt  v.  Lippincott,  6  Serg.  &  R.  386;  1  Am.  Lead. 
Cas.  805-821.  The  powers  of  factors  in  relation  to  the  sale  or  pledg- 
ing of  goods  belonging  to  their  principals  is  regulated  by  statute 
in  many  of  the  States.     See  Factor;  Pledge. 

ARTICLE  XIL 

OF  THE   LIEN   OF  AGENTS. 

Section  1.  Of  an  agent's  lien  in  general.  An  agent's  lien  is 
the  right  to  detain  in  his  possession  the  property  of  another 
until  his  claims  upon  it  are  satisfied.  Liens  may  be  created  by 
express  contract.  Mc  Caffrey  v.  Wooden,  62  Barb.  316;  Milli- 
man  v.  NeTier,  20  id.  37,  40,  but  they  generally  arise  by  opera- 
tion of  law.  Chambers  v.  Damdson,  L.  R.,  1  P.  C.  296  ;  4  Moore's 
P.  C.  (N.  S.)  158  ;  Kirchner  v.  Venus,  12  Moore's  P.  C.  158.  In 
this  particular  the  rules  of  equity  are  the  same  as  those  of  the 
common  law.  Oxenham  v.  Esdaile,  2  Younge  &  Jarv.  493  ;  3  id. 
262 ;  3  B.  &  C.  225. 

§  2.  Particular  liens.  Liens  may  be  general  or  particular.  A 
lien  is  particular  when  it  is  confined  to  work  done  on  a  partiou- 
VoL.  L  — 35 


274  AGENCY. 

lar  article,  by  tlie  workman,  or  for  some  expense  incurred  or  be- 
stowed upon  it. 

The  general  rule  is,  tbat  any  person  wlio  is  employed  to  put 
his  labor  or  money  into  a  thing  on  his  employer' s  account,  has 
a  right  to  detain  such  thing  until  he  is  paid  for  the  outlay  or 
services.  Wilson  v.  Martin,  40  N.  H.  88,  91 ;  Morgan  v.  Cong- 
don,  4  Comst.  552;  United  States  Exp.  Co.  v.  Haines^,  67  111.  139; 
Netian  v.  Roup,  8  Iowa,  207;  Farrington  v.  Meelc,  30  Miss.  578. 

§  3.  General  liens.  A  general  lien  is  one  which  covers  the 
indebtedness  of  the  principal  to  the  agent  on  a  balance  due  upon 
the  accounts  of  the  parties.  It  is  a  right  to  retain  a  thing  not 
merely  for  the  charges  or  claims  arising  out  of,  or  connected  with, 
that  particular  thing,  but  also  for  a  general  balance  of  accounts 
between  the  parties,  in  respect  to  other  dealings  of  a  like  nature. 
Myer  v.  Jacobs,  1  Daly,  32. 

A  general  lien  is  not  allowed  for  any  items  of  account  or  debts 
except  such  as  are  incurred  upon  the  general  account,  and  does 
not  include  items  wholly  disconnected  with  the  business  of  the 
agency.  McKenzie  v.  Nemns,  22  Me.  138 ;  Jarms  v.  Rogers,  15 
Mass.  389. 

The  law  does  not  favor  general  liens ;  and,  it  is  said,  that  a 
general  lien  cannot  be  claimed  according  to  any  general  law  of 
principal  and  agent,  but  only  as  arising  from  dealings  in  some 
particular  trade,  as  to  which  a  custom  to  that  effect  has  been 
established.  Bock  v.  Garrissen,  2  De  Gex,  Fish.  &  Jones,  434, 
443;  Story  on  Agency,  §§  354,  355.  See  Winter  v.  Coit,  7  N.  Y. 
(3  Seld.)  288.  The  instances  in  which  general  liens  are  allowed 
usually  relate  to  transactions  with  factors,  insurance  brokers, 
bankers,  common  carriers,  attorneys,  and  some  others.  The 
right  of  lien  in  such  cases  will  be  considered  when  treating  of 
those  titles,  and  under  the  general  title  Lien. 

§  4.  Lien^  how  acquired.  As  a  general  rule  no  valid  lien  can 
be  created  except  by  the  act  or  consent  of  the  owner  of  the  prop- 
erty, or  by  some  one  who  has  a  right  or  authority  to  do  so. 

And,  therefore,  one  who  is  not  the  owner  of  property,  or  who 
has  no  righful  power  to  dispose  of,  or  to  create  a  lien  upon  it,  or, 
if  he  exceeds  his  authority,  or  is  a  mere  wrong-doer,  or  his  pos- 
session is  tortious,  he  cannot,  ordinarily,  create  a  lien,  or  confer 
it  upon  others. 

A  different  rule  would  enable  a  party  to  give  to  others  a  right 
or  title  which  he  himself  did  not  possess,  in  violation  of  the 
maxim,  that  no  one  can  transfer  to  another  any  greater  right 


AGENCY.  275 

than  he  himself  has.  Broom's  Leg.  Max.  467,  469  ;  Hoffman 
V.  Carow,  22  Wend.  285,  294 ;  Barnard  v.  Campbell,  55  N.  Y. 
(10  Sick.)  456,  462.  An  agent  or  factor  cannot  pledge  his  prin- 
cipal's goods  to  secure  his  own  debt. 

And,  where  goods  come  into  an  agent's  hands,  without  the 
owner's  consent,  the  agent  cannot  detain  them  until  his  charges 
and  expenses  are  paid.  Trams  v.  Thompson,  37  Barb.  236 ; 
RoMnson  v.  Baker,  5  Gush.  (Mass.)  137 ;  Clark  v.  Lowell  and 
Lawrence  R.  R.  Co.,  9  Gray,  231. 

To  constitute  a  valid  lien  there  must  be  an  actual  or  a  con- 
structive possession  of  the  property  or  thing  by  the  party  who 
claims  it,  with  the  express  or  implied  assent  of  the  party  against 
whom  it  is  claimed.  Winter  v.  Coit,  7  N.  Y.  (3  Seld.)  288  ;  Hall 
V.  Jackson,  20  Pick.  194,  197 ;  HoTbrook  v.  ^igU,  24  Wend.  169 ; 
Kollock  V.  Jackson,  5  Ga.  153,  155  ;  Elliot  v.  Cox,  48  id.  39.  A 
constructive  possession  may  be  as  valid  as  an  actual  possession, 
as  where  the  property  or  thing  is  in  the  possession  of  his  ser- 
vant or  agent,  or  where  the  lien  is  created  by  a  bill  of  lading,  or 
by  a  bill  of  sale,  or  by  some  other  similar  act  or  instrument.  lb. 
Where  property  is  lost  or  stolen,  and  the  owner  offers  a  specified 
sum  as  a  reward  to  any  person  finding  or  restoring  it,  the  per- 
son who  finds  or  restores  it,  has  a  lien  upon  it  until  the  reward 
is  paid.  Citmmings  v.  Gann,  52  Penn.  St.  484;  Wentworthx. 
Day,  3  Mete.  (Mass.)  352.  But  where  the  offer  is  merely  to  pay 
"a  liberal  reward,"  there  is  no  lien.  Wilson  v.  Guyton,  8 
Gill.  213. 

§  5.  Upon  what  demands  a  lien  may  be  had.  It  may  be  said  gen- 
erally that  liens  do  not  attach  to  any  but  certain  and  liquidated 
demands ;  and  that  where  they  sound  only  in  damages  and  can 
only  be  ascertained  through  the  intervention  of  a  jury,  no  lien 
attaches.  Story  on  Agency,  §  364 ;  Wilson  v.  Guyton,  8  Gill. 
213.  But  a  lien  may  be  given  in  such  a  case  by  virtue  of  a  spe- 
cial agreement  to  that  effect.  Drinkwater  v.  Goodwin,  Cowp. 
251. 

An  agent  who  is  not  employed  for  a  continuous  service,  but 
merely  to  do  something  to  a  particular  thing,  will  not  have  a  lien 
upon  such  thing  for  any  services  except  such  as  are  bestowed 
upon  or  connected  with  it.  Cecil  Bank  v.  Farmers''  Bank,  22 
Md.  148  ;  Thacher  v.  Hannahs,  4  Rob.  407 ;  Castellain  v.  Thomp- 
son, 13  C.  B.  (N.  S.)  105 ;  Adams  v.  Clark,  9  Gush.  215 ;  Scott 
V.  Jester,  8  Eng.  (Ark.)  437 ;  Somes  v.  British  Empire  Shipping 
Co.,  8  H.  L.  Gas.  338;  S.  G.,  E.  B.  &  E.  353. 


276  AGENCY. 

No  lien  can  be  eniorced  for  the  security  or  payment  of  an  ille- 
gal demand.     See  Illegality. 

§  6.  Waiyer  of  lien,  or  of  right  to  it.  The  nature  of  the  contract 
may  be  such  that  no  right  of  lien  attaches,  as  where  services  are 
rendered  or  money  advanced  upon  property  on  an  express  agree- 
ment that  the  services  and  advances  are  made  upon  the  personal 
credit  of  the  owner  of  the  property,  or  where  a  credit  is  given 
for  a  specified  time.  Stoddard  Woolen  Manuf.  v.  Huntley^  8 
N.  H.  441 ;  Chandler  v.  Belden,  18  Johns.  157 ;  Trust  v.  Pirsson, 
1  Hilt.  293  ;  Cummings  v.  Harris,  3  Vt.  244. . 

An  existing  lien  may  be  waived  by  an  express  agreement  to 
accept  other  securities  in  the  place  of  such  lien,  whether  such 
securities  be  upon  other  property  or  upon  the  personal  respon- 
sibility of  another  person.  Bailey  v.  Adams,  14  Wend.  201 ; 
Murphy  v.  Lippe^  3  Jones  &  Sp.  542 ;  Foltz  v.  Peters,  16  Ind. 
244  ;  Hutchinson  v.  Olcutt,  4  Yt.  549. 

A  person  who  has  a  lien  upon  goods  will  waive  it  by  volun- 
tarily surrendering  them  to  the  owner  ;  for,  since  the  right  is 
founded  upon  possession,  a  surrender  of  that  possession  to  the 
owner  will  terminate  the  right.  BracJcett  v.  Hayden,  15  Me. 
347 ;  Sears  v.-  Wills,  4  Allen,  212  ;  Bigelow  v.  Heaton,  4  Denio, 
496 ;  Sawyer  v.  Lorillard,  48  Ala.  332 ;  Bailey  v.  Quint,  22 
Yt.  474. 

The  goods  may,  however,  be  transferred  upon  an  express 
agreement  that  the  lien  shall  be  retained,  as  where  he  delivers 
them  to  a  third  person  as  a  security,  with  a  notice  of  his  lien, 
and  who  is  to  hold  and  possess  them  as  his  agent  for  the  pur- 
pose of  preserving  the  lien.  TJrquhart  v.  Mclner,  4  Johns.  103 ; 
Clemson  v.  Davidson,  5  Binn.  392;  Donald  v.  Suckling,  L.  R., 
1  Q.  B.  685  ;  JVash  v.  Mosher,  19  Wend.  431. 

The  possession  of  the  factor's  or  the  agent's  carrier  or  agent 
is  the  possession  of  such  factor  or  agent.  HolbrooJc  v.  Wight, 
24  Wend.  169,  175. 

And  for  the  purposes  of  a  lien,  a  constructive  is  as  effectual 
and  valid  as  an  actual  possession.  Kallock  v.  Jackson,  5  Ga. 
153, 155. 

The  indorsement  and  delivery  of  a  bill  of  lading  is  a  sufficient 
possession  of  the  property  mentioned  or  described  in  it.  First 
National  Bank  of  Cincinnati  v.  Kelly,  67  N.  Y.  (12  Sick.)  34  ; 
Bice  V.  Austin,  17  Mass.  197. 

Although  a  return  of  the  possession  of  goods  to  the  owner  by 
one  who  has  a  lien  upon  them  is  a  waiver  of  the  lien,  yet,  if  the 


AGENCY.  •  277 

owner  restores  them  to  the  party  so  having  the  previous  lien,  the 
lien  will  be  revived  or  restored.  Moody  v.  Webster^  3  Pick.  424, 
426  ;  Spring  v.  South  Carolina  Ins.  Co.,  8  Wheat.  268.  But  see 
Grinnell  v.  Cook,  3  Hill,  485,  492. 

In  such  case  the  goods  would  be  subject  to  any  other  lien  or 
incumbrance  which  may  have  attached  while  they  were  in  the 
owner's  possession  and  before  their  return  to  the  party  having 
the  prior  lien.  lb.     Perkins  v.  Boardman,  14  Gray,  481. 

Where  a  lien  is  lost  or  destroyed,  it  is  the  same  as  though  it 
had  never  existed.  lb.    Pilaris  v.  Leacliman,  20  Ala.  662. 

§  7.  Enforcing  Lien.  Generally,  a  lien  is  nothing  more  than  a 
right  of  retaining  the  possession  of  the  property  subject  to  the 
lien  ;  and  the  party  entitled  to  such  lien  cannot  sell  or  dispose 
of  the  property  for  the  purpose  of  satisfying  his  lien,  without 
the  express  or  implied  consent  of  the  owner.  Briggs  v.  Boston  & 
Lowell  R.  P.  Co.,  6  Allen,  247;  Fox  v.  McGregor,  11  Barb.  41 

The  remedy  in  such  cases  is  by  a  foreclosure  of  the  lien  in  a 
court  having  proper  authority  for  that  purpose.  lb.  See  Laws 
of  N.  Y.,  1869,  ch.  738,  providing  for  the  enforcement  of  liens. 

Property  pledged  may  be  sold  by  the  pledgee,  after  personal 
notice  to  the  pledgor ;  and  if  such  notice  cannot  be  given,  the 
remedy  is  in  equity.  Stearns  v.  Marsh,  4  Denio,  227 ;  Bryan 
V.  Baldwin,  52  N.  Y.  (7  Sick.)  232  ;  Porter  v.  Parks,  49  N.  Y. 
(4  Sick.)  564;  Sitgreams  v.  Farmers  &  Mechanics^  Bank,  49 
Penn.  St.  359. 

Factors  generally  have  a  right  to  sell  the  property  in  their 
hands  for  the  purpose  of  reimbursing  themselves  for  advances, 
expenses,  and  the  like  proper  charges.     See  Factors  ;  Lien. 

The  lien  of  a  mechanic  is  a  mere  right  of  retainer,  personal  to 
the  party  in  whom  it  exists,  and  it  is  not  assignable  nor  attach- 
able as  personal  property,  or  as  a  chose  in  action,  of  the  person 
entitled  to  it.  Lomtt  v.  Brown,  40  N.  H.  511  ;  Holly  v.  Hugge- 
ford,  8  Pick.  73,  76 ;  DauUghny  v.  Dwoal,  5  T.  R.  606. 

§  8.  Lien  of  sub-agent.  A  sub-agent,  who  is  a  mere  servant 
of  the  primary  agent,  bears  no  personal  relation  to  the  principal, 
and  has  no  lien  against  him.  Story  on  Agency,  §  388  ;  Whirt. 
on  Agency,  §  827. 


278  AGENCY. 


ARTICLE  XIII. 

RIGHTS  OF  AGENTS  AS  TO  THIRD  PERSONS. 

Section  1.  Rights  in  general.  The  rights  of  agents  in  relation 
to  third  persons  are  generally  such  as  arise  out  of  contracts  made 
by  the  agent  with  them,  or  out  of  torts  committed  by  such  per- 
sons against  the  rights  or  property  of  the  agent  while  acting  in 
that  capacity.  The  right  of  action  may  sometimes  be  vested  in 
the  agent,  sometimes  in  the  principal,  and  in  some  cases,  either 
of  them  may  sue.  As  the  agent,  as  a  general  rule,  merely  rep- 
resents his  principal,  so  the  rights  accruing  from  the  business  of 
the  agency  are  generally  enforced  by  the  principal.  Where  an 
agent,  in  the  sale  of  his  principal' s  property,  binds  himself  per- 
sonally, he  does  not  acquire  any  greater  rights  against  the  pur- 
chaser than  he  would  if  contracting  for  the  sale  of  his  own  prop- 
erty.   Emit  V.  Bancroft,  22  Ohio  St.  172. 

§  2.  Right  of  agent  to  sue  in  his  own  name.  Agents  who 
openly  act  as  such,  and  who  name  their  principals,  do  not  usually 
incur  any  personal  liability,  ante,  256,  and,  therefore,  cannot  be 
sued  upon  such  contracts.  So,  on  the  other  hand,  in  such  cases  the 
right  of  action  upon  the  contracts  is  vested  in  the  principal,  and 
not  in  the  agent.  Familiar  instances  are  numerous  enough,  as 
in  the  case  of  a  clerk  who  sells  goods  in  a  store  or  shop,  or  any 
other  similar  case,  in  whiqh  the  right  of  action  for  the  price  of 
the  goods  is  in  the  principal  and  not  in  the  clerk.  And,  on  the 
other  hand,  any  right  of  action  by  the  purchaser  in  relation  to 
the  title  or  quality  of  the  goods  sold,  or  any  other  right  of  action 
growing  out  of  such  contract  of  sale,  must  be  enforced  against 
the  principal,  and  cannot  be  enforced  against  the  clerk  or  agent. 

These,  however,  are  general  rules,  and  they  do  not  govern 
every  case  of  contracts  made  by  agents.  It  has  been  seen,  ante, 
256,  that  agents  may  be  liable  to  be  sued  upon  contracts  made  by 
them  ;  and  we  shall  see  that  there  are  also  instances  in  which 
the  agent  may  sue  in  his  own  name  upon  contracts  made  by  him 
as  agent. 

The  cases  in  which  agents  may  sue  upon  contracts  made  by 
them  are  usually  classified  in  the  following  manner:  First, 
where  the  contract  is  a  written  one,  and  is  made  expressly  with 
the  agent,  and  purports  to  be  a  contract  personally  with  him, 
although  it  may  be  known  by  the  other  party  that  he  is  acting 
as  a  mere  agent ;  Secondly,  where  the  agent  is  the  only  known 


AGENCY.  279 

or  ostensible  principal,  and,  therefore,  is,  in  legal  effect  the  real 
contracting  party  ;  Thirdly,  where  by  the  usage  of  trade,  or 
the  general  course  of  business,  the  agent  is  authorized  to  act  as 
the  owner,  or  as  a  principal  contracting  party,  although  his  char- 
acter as  agent  is  known  ;  Fourthly,  where  the  agent  has  made  a 
contract,  in  the  subject-matter  of  which  he  has  a  special  interest 
or  property,  whether  he  professed  at  the  time  to  be  acting  as 
agent  for  himself,  or  not.  Story  on  Agency,  §  393.  In  such 
cases  the  agent  acquires  personal  rights  which  he  may  enforce 
by  an  action  in  his  own  name,  without  regard  to  the  question 
whether  his  principal  has  not  similar  rights  upon  the  same 
contracts.  In  the  first  class  of  cases  an  illustration  is  found  in 
those  instances  in  which  a  promissory  note,  or  other  commer- 
cial paper,  is  made  payable  to  an  agent  in  his  own  name. 

Upon  such  a  note  the  agent  may  maintain  an  action  in  his  own 
name,  although  at  the  time  it  was  given,  he  was  known,  by  the 
party  giving  it,  to  be  acting  as  the  agent  of  another  person. 
Fishy.  JacohsoTin,  2  Abb.  Ct.  App.  132;  1  Keyes,  539;  Consid- 
er ant  V.  Brisbane,  22  N.  Y.  (8  Smith)  389,  393;  Buff  urn  v.  Chad- 
loick,  8  Mass.  103;  Johnson  v.  Catlin,  27  Vt.  89;  McConnell  v. 
Thomas,  2  Scam.  (111.)  309,  313;  Moore  v.  Penn,  5  Ala.  135;  Jack- 
son V.  Heath,  1  Bailey,  355. 

The  agent's  right  to  sue  in  his  own  name,  where  the  instrument 
is  in  terms  payable  to  him,  is  the  same  whether  it  be  a  promis- 
sory note,  bill  of  exchange,  check,  bill  of  lading,  policy  of  in- 
surance, bond,  and  the  like  instances.  lb.  Van  Staphorst  v. 
Fearce,  4  Mass.  258 ;  Sargent  v.  Morris,  3  B.  &  Aid.  279,  280 ; 
Blanchard  v.  Fage,  8  Gray,  281 ;  Griffith  v.  Ingledew,  6  Serg. 
&  R.  429  ;  Off.ey  v.  Warde,  1  Lev.  235. 

If  negotiable  paper  is  indorsed  in  blank,  and  then  placed  in 
the  hands  of  an  agent  for  collection,  he  may  sue  upon  it  in 
his  own  name.  Brigham  v.  Marean,  7  Pick.  40 ; .  Gurnsey  v. 
Burns,  25  Wend.  411;  Fhelan  v.  Moss,  67  Penn.  St.  59;  S.  C, 
5  Am.  Rep.  402;  Hamilton  v.  Vought,  34  N.  J.  187;  United 
States  V.  Dugan,  3  Wheat.  172,  180. 

Where  it  is  doubtful,  upon  the  face  of  the  instrument,  whether 
the  parties  to  it  intended  that  the  right  of  action  upon  it  should 
be  in  the  principal  or  in  the  agent,  it  is  quite  generally  held  that 
either  of  them  may  sue  upon  it.  Dupont  v.  Mount  Fleasant 
Ferry  Co.,  9  Rich.  255,  259;  Rutland  &  Burlington  R.  B.  Co.  v. 
Cole,  24  Vt.  33;  Griffith  v.  Ingledew,  6  Serg.  &  R.  429;  Herndon 


280  AGENCY. 

V.  Taylor,  6  Ala.  461 ;  Story  on  Agency,  §  395 ;   Wliart.    on 
Agency,  §  439. 

The  true  rule  is,  for  the  court  to  examine  the  whole  instru- 
ment, and  from  that  to  determine  what  was  the  actual  intention 
of  the  parties,  as  to  the  party  who  was  to  have  the  right  to  en- 
force it.  When  the  instrument  is  in  writing  the  construction  is 
for  the  court,  and  upon  the  entire  instrument,  ante,  122 ;  see  1 
Am.  Lead.  Cas.  773-778  (641-646). 

In  the  second  class  of  cases,  in  which  the  agent  acts  in  his  own 
name  without  disclosing  any  other  principal,  it  is  clear  that  the 
opposite  contracting  party  is  personally  bound  to  the  agent,  and 
that  the  latter  may  enforce  the  contract.  Bickerton  v.  Burrell, 
5  Maule  &  Selw.  383;  BaynorY.  Grote,  15  M.  &  W.  359;  Dicey 
on  Parties,  144,  184.  One  who  contracts  in  reality  for  himself, 
but  apparently  as  agent  for  another  person,  whose  name  he 
gives,  cannot  sue  on  the  contract  as  principal.  lb.  Boulton  v. 
Jones,  2  H.  &  N.  664;  Schmaltz  v.  Avery,  16  Q.  B.  655. 

In  the  third  class  of  cases,  where  by  the  usage  of  trade,  or  the 
general  course  of  business,  the  agent,  though  known  to  be  acting 
as  such,  is  dealt  with,  as  if  he  were  the  principal,  so  that  the  con- 
tract is  a  personal  contract  with  him,  it  is  not  material  whether 
the  contract  is  considered  as  one  exclusively  made  with  the 
agent,  or  whether  the  real  principal,  as  an  implied  party,  has  a 
right  to  enforce,  or  to  avail  himself  of  the  contract. 

In  the  fourth  class  of  cases,  in  which  the  agent  has  an  interest 
or  property,  he  may  sue  in  his  own  name  for  the  enforcement  of 
the  contract.  Sargent  v.  Morris,  3  B.  &  Aid.  276,  280,  281; 
Leeds  v.  Marine  Ins.  Co.,  6  Wheat.  565;  Ke7it  v.  Bornstein,  12 
Allen,  342;  Emit  y.  Bancroft,  22  Ohio  St.  172;  Whitehead  v. 
PoUer,  4  Ired.  257. 

Factors  may  enforce  their  liens  by  a  sale  of  the  property  in 
their  possession.     See  Factors;  Liens. 

§  3.  Principal  may  control  actions.  Although  agents  may,  in 
many  instances,  bring  actions  in  their  own  names  upon  contracts 
made  by  them,  this  does  not  give  them  an  unlimited  right  as  to 
the  management  or  control  of  the  action. 

The  right  of  the  agent  to  bring  actions  is  always  a  subordinate 
one  which  may  be  directed  and  controlled  by  the  principal. 

And  whenever  a  principal  intervenes  by  bringing  an  action  in 
his  own  name,  the  powers  of  the  agent  are  superseded  so  far  as 
such  action  will  produce  that  result.  Taintor  v.  Prendergrast,  3 
Hill,  72 ;  Oirard  v.  Taggart,  6  Serg.  &  R.  27  ;  Sargent  v.  Morris^ 


AGENCY.  281 

3  B.  &  Aid.  277;  Sadler  v.  Leigli,  4  Camp.  195;  Morris  v. 
Cleasby,  1  Maule  &  Selw.  576 ;  Walker  v.  Russ,  2  Wash.  C.  C. 
288  ;  McTcs  v.  Whitmore,  12  Wend.  548. 

This  intervention  by  the  principal  will  not  be  permitted  to 
operate  in  such  a  manner  as  to  affect  or  deprive  the  agent  of  any 
right  or  interest  he  may  have  in  the  contract,  whether  by  way  of 
lien,  or  otherwise.  Drinkwaier  v.  Goodwin,  Cowp.  251,  255 ; 
Morris  v.  Cleasby,  1  Maule  &  Selw.  576 ;  Hudson  v.  Granger, 
5B.&  Aid.  27,  32-34  ;  Houghton  v.  Mathews,  3  Bos.  &  Pul.  489. 
Where  an  action  is  brought  upon  a  contract,  in  the  name  of  the 
agent,  the  same  defenses  may  be  interposed  that  would  be 
available  if  the  action  were  brought  by  the  principal.  Taintor  v. 
Prendergrast,  3  Hill,  72  ;  Huntington  v.  Knox,  7  Cush.  371;  Leeds 
V.  Marine  Ins.  Co.,  6  Wheat.  565  ;  Coppin  v.  Walker,  7  Taunt. 
237. 

In  such  an  action  the  defendant  may  show  as  a  defense  that 
he  did  not  make  any  contract  with  the  agent  as  an  agent,  but 
contracted  with  him  upon  the  supposition,  and  in  the  belief  that 
he  was  the  principal.  Winchester  v.  Howard,  97  Mass.  333 ; 
Humble  v.  Hunter,  12  Q.  B.  311. 

And,  if  a  principal  sues  upon  a  contract  made  by  his  agent, 
the  same  defenses  may  be  made  that  would  be  available  if  the 
action  were  brought  by  the  agent  in  his  own  name.  lb.  Leeds  v. 
Marine  Ins.  Co.,  6  Wheat.  5Q5  ;  Hogan  v.  Shorb,  24  Wend.  458; 
George  v.  Clagett,  7T.  R.  359  ;  S.  C,  2  Smith's  Lead.  Cas.  125 
(185). 

§  4.  Agent  may  sue  for  tort  of  third  person.  An  agent  who  is 
in  possession  of  property  belonging  to  his  principal,  where  such 
possession  was  acquired  in  the  course  of  the  agency,  has  such  an 
interest  therein  that  he  may  maintain  an  action  of  trespass  or  of 
trover  against  a  third  person  who  unlawfully  takes  or  converts 
such  property.  Bass  v.  Peirce,  16  Barb.  595;  Faulkner  v. 
Brown,  13  Wend.  63  ;  Gorum  v.  Carly,  ]  Abb.  285. 

The  principal  may  maintain  the  action  in  his  own  name,  at  his 
election.     See  the  next  article,  §  5. 


ARTICLE  Xiy. 

RIGHTS   OF   PRINCIPALS  AGAINST  THIRD   PERSON'S. 

Section  1.  lu  general.    The  rights  which  arise  or  are  acquired 
by  a  principal,  against  third  persons,  under  or  by  virtue  of  an 

Vol.  I.  —  36 


282  AGENCY. 

agency  created  by  him,  are  those  founded  npon  contracts  made 
by  the  agent,  or  on  account  of  torts  committed  upon  or  against 
property  during  the  course  of  such  agency. 

§  2.  Rights  of  principal  on  agent's  contracts.  It  is  very  clear 
that  a  principal  is  bound  by  the  acts  or  contracts  of  his  agent, 
when  done  with  his  consent,  by  his  authority,  or  when  adopted 
by  his  ratification,  ante,  221,  232.  And,  on  the  other  hand  there  is 
a  reciprocal  obligation  or  liability  to  the  principal,  on  the  part  of 
the  third  person,  with  whom  such  contracts  are  made,  and  for 
whose  benefit,  and  with  whose  consent,  such  acts  are  done.  Story 
on  Agency,  §  418. 

When  an  agent  makes  a  contract  in  the  name  of  his  principal, 
and  not  in  his  own  name,  the  principal  is  the  real  contracting 
party,  and  may  enforce  the  contract  in  the  same  manner  as 
though  made  by  himself  in  person.  Taintor  v.  Prendergrast,  3 
Hill,  72  ;  BasseUv.  Lederer,  1  Hun,  274;  3N.  Y.  S.C.  (T.  &  G.) 
671  ;  Ilsley  v.  Merriam,  7  Cush.  242  ;  Barry  v.  Page,  10  Gray, 
398 ;  Brewster  v.  Saul,  8  La.  296 ;  Small  v.  Atwood,  1  Younge, 
407,  452. 

The  rule  is  the  same  although  the  name  of  the  principal  be  not 
disclosed.  lb.  Graham  v.  Duckwall,  8  Bush  (Ky.),  12 ;  Foster 
V.  Smith,  2  Coldw.  (Tenn.)  744 ;  Woodruff  v.  McGehee,  30  Ga. 
158  ;  Cultier  v.  Bigelow,  43  Vt.  249.  But,  while  the  principal  is 
entitled  to  the  advantages  or  benefits  to  be  derived  from  the  con- 
tracts made  on  his  behalf  by  his  agent,  he  also  takes  all  the 
burthens  or  disadvantages  connected  with  the  contract.  And,  if 
the  contract  of  the  agent  was  obtained  by  his  fraud,  misrepre- 
sentation, or  warranty,  the  principal  will  be  affected  by  the  con- 
sequences, and  the  other  party  may  interpose  any  defense  that 
would  be  available  if  the  principal  had  done  precisely  what  was 
done  by  his  agent.  Elwell  v.  Chamberlain,  31  N.  Y.  (4  Tiff.) 
611 ;  Yeazie  v.  Williams,  8  How.  (U.  S.)  134,  157. 

If  the  name  of  the  principal  is  not  disclosed,  and  the  agent 
enters  into  the  contract  as  though  made  for  himself,  the  princi- 
pal, if  he  assumes  the  right  to  enforce  the  contract,  must  take  it 
subject  to  all  the  equities  which  could  be  enforced  against  tha 
agent.  Taintor  v.  Prendergrast,  3  Hill,  72  ;  Leeds  v.  Marine 
Ins.  Co.,  6  Wheat.  565  ;  Gibson  v.  Winter,  5  B.  &  Ad.  96  ;  Traub 
V.  Millikin,  57  Me.  63 ;  2  Am.  Rep.  14  ;  George  v.  Clagett,  7 
Term  Rep.  359. 

§  3.  Payments  to  agents.  Payment  of  money  due  to  the  prin 
cipal,  when  made  to  an  agent  duly  authorized  to  receive  it,  is  a 


AGENCY.  283 

good  payment  to  the  principal,  and  a  discharge  of  the  debtor. 
Faveno  v.  Bennett,  11  East,  38 ;  Baring  v.  Corrie,  2  B.  &  Aid. 
137 ;  Renard  v.  Turner,  42  Ala.  117. 

But  there  are  cases  in  which  it  is  not  easy  to  determine 
whether  the  agent  is  duly  authorized  to  receive  payment,  and  in 
all  such  cases  the  party  who  is  to  pay  the  money  is  required  to 
see  that  the  payment  is  made  to  one  who  is  authorized  to  receive 
it. 

Where  a  promissory  note,  payable  to  the  order  of  the  payee, 
but  not  indorsed  by  him,  is  in  the  hands  of  one  who  assumes  to 
be  an  agent,  for  the  purpose  of  receiving  payment  of  the  note, 
the  mere  possession  of  the  note  is  not  alone  sufficient  evidence 
of  his  authority  to  authorize  the  maker  to  pay  the  money  to 
him.  DouUeday  v.  Kress,  50  N.  Y.  (5  Sick.)  410 ;  10  Am.  Eep. 
502 ;  Wardrop  v.  Dunlop,  1  Hun,  325  ;  S.  C,  3  N.  Y.  S.  C.  (T. 
&  C.)  531. 

Possession  of  a  note  payable  to  bearer  authorizes  a  payment 
to  him  by  the  maker.  Woodbury  v.  Lamed,  5  Minn.  339  ;  Dams 
V.  Lusitanian,  20  La.  Ann.  24. 

An  agent  who  is  employed  to  act  in  behalf  of  his  principal  in 
making  a  contract,  is  not,  merely  from  such  employment,  to  be 
treated  as  having  an  incidental  authority  to  receive  the  money 
which  may  become  due  under  the  contract.  Puttock  v.  Warr^  3 
H.  &  N.  979 ;  River  Clyde  Trustees  v.  Duncan,  25  Eng.  Law  & 
Eq:  19. 

An  agent  employed  to  procure  the  assignment  of  a  bond  and 
mortgage,  or  to  invest  money  upon  such  securities,  is  not  thereby 
authorized  to  receive  either  the  principal  or  the  interest,  when 
his  principal  takes  and  retains  possession  of  the  securities. 
Williams  v.  Walker,  2  Sandf.  Ch.  325 ;  3  N.  Y.  Leg.  Obs.  204. 

But  if  the  principal  intrusts  the  agent  with  the  possession  of 
the  bond  and  mortgage,  and  permits  him  to  receive  and  indorse 
payments  from  time  to  time  until  the  principal  is  paid,  the  prin- 
cipal will  be  bound  by  such  payments.  lb.  Hatfield  v.  Reynolds^ 
34  Barb.  612. 

A  subsequent  ratification  by  the  principal  of  a  payment  made 
to  an  agent,  not  authorized  to  receive  the  payment,  will  bind  the 
principal.  Wardrop  v.  Dunlop,  1  Hun,  325  ;  3  N.  Y.  S.  C.  (T. 
&  C.)  531. 

An  authority  by  a  principal  to  his  agent  to  receive  payment  of 
a  debt  for  him  does  not,  in  the  absence  of  any  other  authority, 
authorize  the  agent  to  receive  any  thing  but  money  as  payment. 


284  AGENCY. 

BostlcTc  V.  Hardy,  30  Ga.  836 ;  Mudgett  v.  Day,  12  Cal.  139 , 
Prather  v.  State  Banlc,  3  Ind.  356 ;  Todd  v.  Reid,  4  B.  &  Aid. 
210;  Russell  v.  Bangley,  id.  395;  McCulloch  v.  McKee,  16  Penn. 
St.  289. 

Where  an  agent  contracts  as  though  he  were  the  principal,  and 
there  is  no  notice  to  the  other  party  that  there  is  a  principal,  a 
payment  to  the  agent  will  be  good  as  against  a  subsequent  claim 
by  the  real  principal.  Traub  v.  Milliken,  57  Me.  63 ;  2  Am.  Rep. 
14  ;  George  v.  Clagett,  7  Term  R.  359  ;  S.  C,  2  Smith's  Lead.  Cas. 
125  (185) ;  Huntington  v.  Knox,  7  Cush.  371. 

An  agent  who  is  merely  authorized  to  collect  a  debt  has  no 
right  to  take  a  note  from  the  debtor,  for  the  amount  of  the  debt, 
payable  to  himself,  and  thus  substitute  himself  as  creditor ;  but 
if  he  does  so,  and  the  principal  afterward  ratifies  the  transaction, 
the  latter  is  bound  by  the  arrangement,  and  the  debtor  discharged 
from  the  original  claim.     McCulloch  v.  McKee,  16  Penn.  St.  289. 

An  agent  employed  to  collect  a  debt,  and  who  takes  a  negotia- 
ble note  for  the  amount,  payable  to  his  principal,  has  no  author- 
ity to  pledge  the  note  as  a  collateral  security  for  his  own  debt. 
Jones  Y.Farley,  6  Greenl.  (Me.)  226;  Hays  v.  j&mTj,  7  Watts, 
524. 

An  authority  to  receive  checks,  in  lieu  of  cash,  in  payment  of 
bills  placed  in  the  hands  of  an  agent  for  collection,  does  not 
authorize  the  agent  to  indorse  and  collect  the  checks.  Oraliam 
V.  United  Savings  Institution,  46  Mo.  186. 

Payment  to  an  agent  by  a  release  or  discharge  of  his  own  per- 
sonal debt  is  not  a  payment  to  the  principle.  Bostick  v.  Hardy, 
30  Ga.  836  ;  Qreemoood  v.  Burns,  50  Mo.  52 ;  Catterall  v.  Hindle, 
L.  K,  1  C.  P.  186,  190. 

An  agent  who  is  employed  to  collect  a  debt  which,  by  the 
terms  of  the  instrument  evidencing  it,  is  payable  in  a  particular 
sort  of  currency,  has  no  right  to  accept  payment  in  any  other 
currency  than  that  so  specified,  unless  by  the  direction  of  his 
principal.    Mangum  v.  Ball,  43  Miss.  288. 

§  4.  Payments  by  agents  for  principals.  Where  obligations 
are  created,  or  debts  incurred  in  the  course  of  the  agency,  the 
obligations  of  the  principal  may  be  discharged,  or  the  debts 
paid  by  the  agent.  And  when  the  mode  of  cancelling  the  obli- 
gation, or  of  paying  the  debt,  is  satisfactory  to  the  party  enti- 
tled to  the  payment,  and  he  receives  it  as  an  absolute  discharge 
of  the  obligation  or  debt,  this  will  operate  to  discharge  the  prin- 
cipal. 


AGENCY.  285 

If  a  factor  or  other  agent  is  employed  to  purchase  goods  for 
his  principal,  or  he  is  intrusted  with  money  to  pay  for  them,  but 
the  seller  should  elect  to  take  the  note  of  such  factor  or  agent, 
payable  at  a  future  day,  as  an  absolute  payment,  the  principal 
will  be  discharged  from  the  debt,  and  the  creditor's  only  remedy 
will  be  against  the  factor  or  agent.  Seymour  v.  Pychlau,  1 
Barn.  &  Aid.  14  ;  Strong  v.  Hart,  6  B.  &  C.  160 ;  Meeker  v.  Clag- 
Tiorn,  44  N.  Y.  (5  Hand)  349. 

Whether  the  agent's  note  was  accepted  as  payment  is  a  ques- 
tion of  fact.    Porter  v.   Talcott,  1  Cow.  359  ;  Pentz  v.  Stanton, 

10  Wend.  271. 

§  5.  Torts  to  property  in  agent's  hands.  It  has  been  seen,  ante, 
281 ,  art.  13,  §  4,  that  an  agent  may  sue  a  third  person  for  a  wrong- 
ful injury  to  the  property  in  his  possession. 

A  principal  may  maintain  an  action  against  any  person  who 
wrongfully  takes,  converts,  injures  or  destroys  his  personal 
property,  which  is  in  the  custody  of  his  agent,  for,  in  such  cases 
the  possession  of  the  agent  is  the  possession  of  the  principal. 
AiJcin  V.  Buck,  1  Wend.  466 ;  Cary  v.  Hotailirig,  1  Hill,  311, 
814;  Thorp  v.  Burling,  11  Johns.  285 ;  Manders  v.  Williams,  4 
Exch.  339  ;  Soper  v.  Sumner,  5  Vt.  274  ;  Edwards  v.  Edwards, 

11  id.  587 ;  Cutter  v.  Copeland,  18  Me.  127. 

§  6.  Wrongful  sales  or  transfers  by  agent.  An  agent  who 
wrongfully  and  fraudulently  transfers  his  principal's  property 
to  a  third  person,  who  has  knowledge  or  notice  of  the  fraud,  or 
to  one  who  is  not  a  hona  Jide  purchaser  for  value,  does  not  de- 
prive the  principal  of  his  title  to  the  property,  nor  bar  his  right 
of  action  to  recover  the  property  or  its  value  from  the  person  so 
receiving  it.  Frazier  v.  Erie  Bank,  8  Watts  &  Serg.  18 ;  Boy- 
son  V.  Coles,  6  M.  &  Selw.  14 ;  Clark  v.  Shee,  Cowp.  197. 

ARTICLE  XV. 

EIGHTS   OF  THIED   PEESOi;rS  AGAINST   PEINCIPALS. 

Section  1.  In  general.  In  the  law  of  agency,  it  is  a  funda- 
mental principle  that  the  acts  done,  or  the  contracts  made,  by  an 
agent,  within  the  scope  of  his  authority,  is  the  act  or  contract  of 
the  principal,  as  much  as  though  he  had  acted  in  person  in  the 
transaction.  Such  a  rule  not  only  gives  him  all  the  rights  which 
accrue,  or  are  secured  by  such  acts  or  contracts,  bul  it  also  im- 
poses upon  him  all  the  liabilities  or  disadvantages  which  may 
result  therefrom.    In  the  investigation  of  the  subject  the  prin- 


286  AGENCY. 

cipal  questions  which  arise  are  those  which  are  founded  upon 
contracts  made,  or  upon  torts  occurring  in  the  course  of  the 
business  of  the  agency. 

§  2.  Rights  of  third  persons  on  agent's  contracts.  The  right  of 
the  principal  to  sue  upon  a  contract  made  by  his  agent  is  subject 
to  the  burden  or  qualification  that  he  is  also  liable  to  be  sued 
upon  it  by  the  other  contracting  party. 

The  first  question  that  naturally  arises  in  actions  by  third 
persons  against  the  principal  upon  contracts  made  by  an  agent, 
is,  had  the  agent  authority  to  make  the  contract  sued  upon.  This 
general  subject  has  been  quite  fully  discussed  in  the  present 
chapter,  ante^  240,  257. 

If  the  agent  had  no  authority  to  make  the  contract,  or  if  the 
contract  itself  is  illegal,  no  action  will  lie  upon  it.  But,  if  the 
contract  is  legal,  and  was  authorized  by  the  agency  created,  and 
is  suflicient  in  form  and  substance,  the  general  rule  is,  that  the 
principal  is  liable  upon  a  breach  of  such  contract  on  his  part. 
Contracts  are  as  numerous,  and  as  varied  in  their  character  and 
terms,  as  the  business  of  the  public  may  require.  And,  for  this 
reason,  there  can  be  no  enumeration  of  all  the  particular  cases 
which  are  found  in  the  books. 

There  are  some  instances  in  which  the  principal  may  be  liable 
even  though  he  did  not  authorize  the  contract  made,  or  though 
it  was  made  in  violation  of  his  instructions.  Such  cases  are  where 
the  principal  holds  out  the  agent  to  the  public,  or  where  he 
knowingly  permits  the  agent  to  hold  himself  out  as  having 
authority  to  make  such  contracts ;  for  in  such  cases,  the  principal 
will  be  liable  notwithstanding  the  agent  has  violated  his  private 
instructions  by  making  the  contract.  If  the  principal  puts  it  in 
the  power  of  his  agent  to  make  contracts,  or  to  do  acts,  appar- 
ently within  his  authority,  which  will  result  in  injury  to  innocent 
third  persons,  or  to  the  principal,  the  law  imposes  the  loss  upon 
the  latter.  VanDuzer  v.  Howe,  21  N.  Y.  (7  Smith)  531  ;  Redlich 
V.  Boll,  54  N.  Y.  (9  Sick.)  234,  238  ;  Garrard  v.  Haddan,  67 
Penn.  St.  82 ;  5  Am.  Rep.  412 ;  Hatch  v.  Taylor,  10  N.  H.  538  ; 
CarmicTiael  v.  Buck,  10  Rich.  332. 

Again,  where  third  persons  deal  with  an  agent  in  the  belief 
that  he  is  the  real  principal,  without  notice  or  knowledge  that 
the  property  involved  in  such  dealing  belongs  to  another,  the 
rights  of  sufth  third  persons  will  be  protected  in  the  same  manner 
as  though  the  agent  were  the  actual  principal,  ante,  257,  258,  284. 

So,  too,  if  an  agent  enters  into  a  contract  not  authorized  by  the 


AGENCY.  287 

principal,  but  the  latter,  with  full  knowledge  of  all  the  facts, 
ratifies  it,  the  contract  will  then  be  binding  upon  the  principal, 
and  the  other  party  will  have  the  same  protection  and  rights  as 
though  the  authority  had  been  originally  conferred  upon  the 
agent,  ante.    Hildehrand  v.  Crawford,  6  Lans.  502. 

The  cases  in  which  the  rights  of  parties  who  deal  with  agents 
are  most  frequently  brought  in  question  are  those  arising  from 
the  acts  of  the  agent  in  the  ordinary  course  of  the  business  of 
the  agency.  And  since  the  authorized  acts  of  the  agent  are  the 
acts  of  the  principal,  the  acts  of  the  agent  while  engaged  in  the 
usual  course  of  his  employment  will  be  binding  upon  his  prin- 
cipal. 

A  telegraph  company  is  liable  for  the  errors  of  its  agent  in  the 
transmission  of  messages.    Dunning  v.  Roberts,  35  Barb.  463. 

A  common  carrier  of  goods  is  liable  for  goods  properly  deliv- 
ered to  the  agent  of  the  carrier,  and  accepted  by  him.  Grosvenor 
V.  New  Torlc  Central  R.  R.  Co.,  39  N.  Y.  (12  Tiff.)  34;  6  Trans. 
App.  811  ;  5  Abb.  (N.  S.)  345  ;  Blanchard  v.  Isaacs,  3  Barb.  388 ; 
See  Carrier. 

For  illustration  of  the  acts  authorized  to  be  done  in  the  course 
of  an  agency,  see  ante,  220. 

§  8.  Principal's  liability  for  torts  of  agent.  A  principal  who 
gives  express  directions  to  his  agent  to  do  acts  which  are  tortious 
is  liable  for  the  injuries  resulting  from  such  acts.  Hewett  v. 
Swift,  3  Allen,  420  ;  Herring  v.  Hoppoclc,  15  N.  Y.  (1  Smith) 
409 ;  Rynes  v.  Jungren,  8  Kansas,  391  ;  Jackson  v.  Second 
Avenue  R.  R.  Co.,  47  N.  Y.  (2  Sick.)  274  ;  7  Am.  Rep.  448. 

But  a  principal  is  also  liable  for  many  of  the  wrongful  acts  of 
his  agent,  even  though  he  did  not  expressly  authorise  them  to  be 
done.  If  an  agent  is  guilty  of  negligence  in  the  performance  of 
his  duties,  and  a  third  person  receives  an  injury  in  consequence, 
the  principal  is  liable.  Southwick  v.  Estes,  7  Cush.  385  ;  Phila- 
delphia &  Reading  R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  468 ; 
Chapman  v.  New  York  Central R.  R.  Co.,  33  N.  Y.  (6 Tiff.)  369 ; 
31  Barb.  399. 

The  principal  is  liable  for  the  fra  uds  of  the  agent  when  com- 
mitted in  the  course  of  his  employment.  Hunter  v.  Hudson 
River  Iron  &  Machine  Co.,  20  Barb.  493,  507 ;  Udell  v.  Atherton^ 
7Exch.  172  ;  Jeffrey  v.  Bigelow,  13  Wend.  518  ;  Durst  v.  Bur- 
ton, 47  N.  Y.  (2  Sick.)  167 ;  7  Am.  Rep.  428  ;  Locke  v.  Stearns, 
1  Mete.  (Mass.)  560 ;  Madison  R.  R.  v.  Norwich,  24  Ind.  457 ; 


288  AeENCY. 

Tome  V.  ParTcersburgTi^  etc.,  B.  JR.  Co.,  39  Md.  36 ;   Veazie  v. 
Williams,  8  How.  (U.  S.)  134. 

Although  the  wrongful  9.ct  of  an  agent  may  be  such  that  the 
principal  is  not  liable  for  it,  yet  if  he  subsequently  ratifies  it 
with  full  knowledge  of  the  facts,  he  will  be  liable,  and  taking 
advantage  of  the  tort  is  a  ratification  of  it.  Exum  v.  Brister,  85 
Miss.  391 ;  Wallace  v.  Morgan,  23  Ind.  599  ;  Maddux  v.  Bevan, 
39  Md.  485 ;  Morehouse  v.  Northrop,  33  Conn.  389 ;  Fitzsimmons 
V.  Joslin,  21  Vt.  129  ;  Byram  v.  McGuire,  3  Head,  530. 

A  principal  is  not  liable  for  a  willful  tort  committed  by  his 
agent,  if  he  did  not  authorize,  and  has  not  ratified  the  act.  Yan- 
derUlt  V.  Richmond  Turnpike  Co.,  2  N.Y.  (2  Comst.)479  ;  IHill, 
480 ;  Taller  v.  Voght,  13  III.  277 ;  Cantrell  v.  Colwell,  3  Head, 
471. 

There  are  cases  in  which  a  principal  directs  an  act  to  be  done 
by  the  agent,  in  a  lawful  manner,  but  the  agent  errs  in  the  mode 
of  executing  his  authority,  to  the  injury  of  a  third  person,  for 
which  the  principal  will  be  held  responsible.  A  principal  who 
directs  his  agent  to  go  and  get  a  neighbor's  horses,  with  the  ex- 
pectation on  the  part  of  the  principal  that  the  agent  will  obtain 
them  with  the  owner's  permission,  but  the  agent,  from  a  misun- 
derstanding of  his  instructions,  takes  the  horses  without  leave, 
and  while  using  them,  kills  one  of  the  horses,  in  this  case  the 
principal  will  be  liable  for  the  value  of  the  horse.  Moir  v.  Hop- 
kins, 16  m.  313. 

A  principal  who  sends  his  agent  to  a  mill-yard  of  a  saw-mill 
to  get  boards  piled  there,  and  belonging  to  him,  with  instructions 
to  the  agent  to  call  on  the  sawyer  to  point  out  the  principal's 
boards,  will  be  liable  if  the  agent,  while  pursuing  his  instruc- 
tions, makes  a  mistake  and  also  takes  away  the  boards  of  a  third 
person.    May  v.  Bliss,  22  Vt.  477. 

A  principal  who  directs  his  agent  to  cut  timber  on  his  land  in 
a  designated  direction,  and  the  agent,  not  knowing  where  the 
line  is,  cuts  over  upon  the  lands  of  a  third  person,  the  principal 
will  be  liable  for  the  injury.  Luttrell  v.  Hazen,  3  Sneed 
(Tenn.),  20. 

The  liability  of  one  person  for  the  acts  of  another  who  is  em- 
ployed in  the  capacity  of  a  servant,  will  be  fully  discussed  under 
the  title  Master  and  Servant. 


AGENCY.  289 

ARTICLE  XVI. 

TEBMINATION"  OF  AIT  AGENT'S  AUTHOKITT. 

Section  1.  In  general.  The  time  when,  and  the  manner  in 
which  an  agency  may  be  terminated  will  depend  npon  the  nature 
of  the  agency  itself.  It  may  be  terminated  by  the  acts  of  the 
parties,  or  by  operation  of  law.  Like  every  other  contract  it 
may  be  terminated  by  the  mutual  consent  of  the  parties.  An 
agency  which  has  no  time  fixed  for  its  continuance  may  be  ter- 
minated at  any  time  by  the  revocation  of  the  principal,  or  by  the 
renunciation  of  the  agent.  An  agency  which  is  to  continue  for 
a  limited  time  will  terminate  by  its  own  limitation  at  the  expi- 
ration of  that  time. 

§  2.  ReToeation  of  authority  by  principaL  As  a  general 
rule,  a  principal  has  a. right  to  revoke  or  terminate  the  authority 
given  to  an  agent,  at  any  time  when  he  sees  proper  to  do  so. 
BrooTcsMre  v.  Voncannon,  6  Ired.  231 ;  Blackstone  v.  Butter- 
more^  53  Penn.  St.  266 ;  CoffijU  v.  Landis^  46  id.  426  ;  Jacobs  v. 
Warfield,  23  La  Ann.  395 ;  Brown  v.  Pforr,  38  Cal.  550. 

An  agent's  authority  may  be  revoked  by  parol,  although  his 
appointment  was  under  seal.  BroolcsJiire  v.  BrooTcsMre,  8  Ired. 
74. 

A  contract  to  employ  an  agent  for  a  year,  if  he  "could  fill  the 
place  satisfactorily,"  may  be  terminated  by  the  employer  when- 
ever, in  his  judgment,  the  agent  fails  to  meet  that  requirement  of 
the  contract.     Tyler  v.  Ames,  6  Lans.  280. 

A  contract  to  work  for  a  specified  time,  which  provides  that 
the  employee  may  leave  in  case  of  a  disagreement  between  the 
parties,  authorizes  the  employer  to  terminate  the  contract  when- 
ever a  bona  fide  disagreement  occurs.  Gates  v.  Davenport,  29 
Barb.  160. 

An  authority  may  be  irrevocable  when  it  is  expressly  agreed 
that  it  shall  be  so,  and  where,  in  addition,  the  agent  has  an  in- 
terest in  the  execution  of  the  authority.  Hunt  v.  Rousmanief  s 
Admr.,  8  Wheat.  174  ;  Goodwin  v.  Bowden,  54  Me.  424;  Black- 
stone  V.  Buttermore,  53  Penn.  St.  266. 

A  power  of  attorney  is  irrevocable  where  it  is  a  security  for 
money  advanced.  lb. 

§  3.  Mode  of  revocation.  The  revocation  of  an  agent's  authority 
may  be  express,  as  by  a  direct  notification  of  that  fact  to  the 
agent.    It  is  not  necessary,  however,  that  there  should  be  an 

Vol.  I.  —  37 


290  AGENCY. 

express  revocation  ;  it  may  be  implied  from  facts  and  circum- 
stances. 

Generally  the  revocation  of  an  agent's  authority  takes  effect 
as  to  him,  from  the  time  when  such  revocation  is  made 
known  to  him.  Weile  v.  United  States,  7  Ct.  of  CI.  535 ;  Robert- 
son V.  Cloud,  47  Miss.  208 ;  *Jones  v.  HodgsTcins,  61  Me.  480. 

Where  third  persons  deal  in  good  faith  with  one  who  was  duly 
authorized  as  an  agent,  a  revocation  of  the  agent' s  authority  will 
not  affect  the  dealings  of  such  third  persons  with  the  agent, 
until  notice  of  the  revocation  is  given  to  them.  Fellows  v.  Hart- 
ford, etc.,  Stearriboat  Co.,  38  Conn.  197;  Tier  v.  Lampson,  35 
Vt.  179  ;  Diversy  v.  Kellogg,  44  111.  114 ;  Beard  v.  Kirk,  ll.N. 
H.  397 ;  Morgan  v.  Still,  5  Binn.  305. 

§  4.  Benuuciatlon  of  agent.  An  agency  may  be  terminated  by 
the  renunciation  of  the  agent.  But  if  the  agency  is  founded 
upon  a  valuable  consideration,  or  it  has  been  partially  executed, 
the  agent,  by  renouncing  it,  and  leaving  the  business  of  the 
agency  unfinished,  will  be  liable  for  the  damages  which  his 
principal  may  sustain  in  consequence.  Thome  v.  Deas,  4  Johns. 
84 ;  White  v.  Smith,  6  Lans.  6  ;  Gill  v.  Middleton,  105  Mass. 
479  ;  Elsee  v.  Oatward,  5  T.  R.  143. 

An  agency,  though  voluntary  and  gratuitous,  if  partially  exe- 
cuted, cannot  then  be  renounced  to  the  principal's  damage,  with- 
out liability  upon  the  part  of  the  agent  to  make  the  loss  good.  lb. 

§  5.  Termination  by  operation  of  law.  The  bankruptcy  of  the 
principal  revokes  the  agent's  authority  as  to  the  property  divested 
by  the  bankruptcy.  Minnett  v.  Forrester,  4  Taunt.  541 ;  Parker 
V.  Smith,  16  East,  382. 

The  insanity  of  the  principal  may  operate  as  a  revocation  of 
an  agency,  but  the  courts  will  require  clear  evidence  that  the 
insanity  is  of  a  character  to  prevent  the  principal  from  making 
a  valid  contract,  before  they  will  declare  an  agency  revoked  for 
that  cause.  Motley  v.  Head,  43  Vt.  633 ;  Dams  v.  Lane,  10  N. 
H.  156,  159.  Insanity  on  the  part  of  an  agent,  which  incapaci- 
tates him  from  making  valid  contracts,  ought  to  operate  as  a 
revocation  of  his  authority.     Story  on  Agency,  §  487. 

§  6.  Revocation  by  death  of  principal.  The  death  of  a  princi- 
pal is  a  revocation  of  the  agent's  authority.  Davis  v.  Windsor 
Savings  Bank,  46  Yt.  728  ;  Hunt  v.  Rousmanier,  8  Wheat.  174- 
217 ;  1  Am.  Lead.  Cas.  700  (576) ;  Saltmarsh  v.  Smith,  32  Ala. 
407 ;  Oalt  v.  Galloway,  4  Peters,  333,  344 ;  Yale  v.  Tappan,  12  N. 
H.  146,  148;  Coney  V.  Saunders,  28  Ga.  511  ;  HougJitaling  y. 


AGENCY.  291 

Marvin,  7  Barb.  412  ;  see  Story  on  Agency,  §  488 ;  Lewis  v.  Kerr, 
17  Iowa,  73  ;  Primm  v.  Stewart,  7  Tex.  178  ;  Whart.  on  Agency, 
§104. 

§  7.  Revocation  by  deatli  of  agent.  The  death  of  an  agent 
necessarily  terminates  the  agency.  Gage  v.  Allison,  1  Brevard, 
495 ;    Merrick's  Estate,  8  Watts  &  Serg.  402. 

Where  a  power  or  authority  is  conferred  upon  two  persons, 
the  death  of  one  of  them  terminates  the  agency.  Hartford  Fire 
Ins.  Co.  V.  Wilcox,  57  III.  180 ;  Marline  v.  International  Life 
Ins.  Society,  53  N.  Y.  (8  Sick.)  339 ;  13  Am.  Rep.  529. 

Where  two  persons  are  jointly  appointed  agents  to  take 
charge  of  the  principal's  business  for  a  specified  term,  and  one  of 
the  agents  becomes  incapacitated  before  the  end  of  such  term, 
the  business  cannot  be  performed  by  the  other  agent  alone  with- 
out the  consent  of  the  principal,  who  may,  if  he  chooses,  discon- 
tinue the  agency.  Salisbury  v.  Brisbane,  61  N.  Y.  (16  Sick.)  617. 


292  ANCIENT  LIGHTS. 

CHAPTER    IX. 

ANCIENT  LIGHTS. 

TITLE  I. 

GENERAL  RULES  AND  PRINCIPLES. 

ARTICLE  L 

OF  THE  ESTGLISH  EXJLE. 

Section  1.  Right  by  prescription.  It  is  a  doctrine  of  the  com- 
mon law  of  England,  long  recognized  by  the  English  courts, 
that  if  one  be  possessed  of  a  honse  with  windows  opening  npon 
the  land  of  another,  for  a  long  period  of  time,  they  cannot  be 
obstructed  so  as  to  deprive  him  of  the  light,  as  he  has  been  ac- 
customed to  enjoy  it.  Bury  v.  Pope^  Cro.  Eliz.  118;  Palmer  v. 
Fletcher,  1  Lev.  122  ;  AldreWs  Case,  9  Co.  58;  Yillers  y.  Ball, 
1  Show.  7 ;  Lewis  v.  Price,  cited  2  Saund.  175.  But  in  order 
that  lights  may  be  entitled  to  this  special  protection,  they  must 
be  ancient;  and  it  would  seem  from  some  of  the  early  English 
cases  just  cited,  that  lights  of  thirty  or  forty  years'  standing 
were  not  to  be  deemed  ancient  within  the  requirements  of  the 
old  rule  on  the  subject.  However  this  may  have  been  formerly, 
the  period  of  prescription  or  limitation  became  shortened  in 
modern  times,  and  it  was  stated,  as  settled  law,  that  twenty 
years'  quiet  and  uninterrupted  possession  of  window  lights  was 
suflS^cient  ground  for  a  jury  to  presume  a  grant  or  covenant,  pro- 
vided there  was  evidence  that  the  owner  or  landlord  (and  not  the 
tenant,  merely)  of  the  opposite  premises  had  knowledge  during 
the  twenty  years  of  the  fact.  Daniel  v.  North,  11  East,  371 ; 
Baclc  V.  Stacy,  2  Russ.  121 ;  LanfrancTii  v.  MacKenzie,  L.  R.,  4 
Eq.  421 ;  Limit  v.  Wilson,  3  Bing.  115 ;  BarJcer  v.  Richardson, 
4  B.  &  A.  579 ;  Cross  v.  Lewis,  2  B.  &  C.  686 ;  S.  C,  4  D.  &  R. 
234 ;  4  Kent's  Com.  448.  The  doctrine  has  been  stated  at  length 
that,  if  a  man  build  a  house  upon  his  own  land,  near  that  of  his 
neighbor,  and  place  windows  in  his  house,  through  which  the 
light  from  over  his  neighbor's  land  passes  in,  though  in  thus  ap- 
propriating this  light  he  commits  no  ouster  or  disseizin,  and  is 


ANCIENT  LIGHTS.  293 

guilty  of  no  wrong  remediable  by  action,  and  though  his  neigh- 
bor has  no  means  of  defeating  this  enjoyment  but  by  building  a 
wall  on  his  own  land,  which  shall  obstruct  its  passage,  yet  if  he 
abstains  from  doing  so  and  permit  the  use  and  enjoyment  of 
the  light  passing  through  the  windows  for  a  great  length  of  time 
(fixed  by  many  cases  at  twenty  years  in  analogy  to  the  statute  of 
limitations,  as  to  the  possessory  title  to  land),  the  presumption 
of  right  will  be  indulged  in  favor  of  this  long  possession,  and  in 
the  absence  of  countervailing  circumstances,  will  be  held  conclu- 
sive ;  and  he  will  be  subject  to  an  action  if  he  subsequently  ob- 
struct these  ancient  lights  by  building  a  wall  even  upon  his  own 
land.  Manier  v.  Myers,  4  B.  Mon.  (Ky.)  514,  520 ;  see,  also, 
McCready  v.  Thomson,  Dudley  (S.  C),  131 ;  Oerher  v.  Ordbely 
16  lU.  217 ;  Mahan  v.  Brown,  13  Wend.  251.  Such  is  the  doc- 
trine of  the  English  common 'law,  as  it  has  been  recognized  and 
applied  by  the  English  courts  prior  to  any  statutory  provisions 
on  the  subject. 

§  2.  By  statute  in  England.  An  English  statute  now  provides 
that,  "  when  the  access  and  use  of  light  to  and  from  any  dwell- 
ing-house, workshop,  or  other  building  shall  have  been  actually 
enjoyed  for  the  full  period  of  twenty  years,  without  interrup- 
tion, the  right  thereto  shall  be  deemed  absolute  and  indefeasible, 
any  local  usage  or  custom  to  the  contrary,  notwithstanding, 
unless  it  shall  appear  that  the  same  was  enjoyed  by  some  con- 
sent or  agreement,  expressly  made  or  given  for  that  purpose,  by 
deed  or  writing."  2  and  3  Will.  4,  c.  71,  s.  3.  The  right  to 
"ancient  lights"  now  depends  upon  this  statute,  and  not  upon 
any  presumption  of  grant  or  fiction  of  license ;  and  being  an 
absolute,  indefeasible,  and  unqualified  statutory  right,  cannot 
be  lost  by  a  subsequent  intermission  of  enjoyment,  not  amount- 
ing to  intentional  abandonment,  nor  can  it  be  prejudiced  by  an 
attempt  to  extend  the  access  of  light  beyond  that  access  which 
has  so  become  indefeasible.  Tapling  v.  Jones,  11  H.  L.  Cas. 
290 ;  S.  C,  20  C.  B.  (N.  S.)  166  ;  34  L.  J.,  C.  P.,  344 ;  and  see  Bar- 
bridge  v.  Warwick,  3  Exch.  656;  S.  C,  18  Law  J.,  Exch.,  245; 
Flight  V.  Thomas,  8  CI.  «fe  Fin.  231. 

§  3.  Implied  grant.  It  is  a  well-settled  rule  of  the  common 
law,  that  wherever  the  owner  of  land  has,  by  any  artificial 
arrangement,  created  an  advantage  or  incident  for  the  benefit  of 
one  portion  to  the  burdening  of  the  other,  upon  a  severance  of 
the  ownership,  the  holders  of  the  two  portions  take  them  respect- 
ively charged  with  the  servitude  and  entitled  to  the  benefit 


294  ANCIENT  LIGHTS. 

openly  and  visibly  attaclied  at  the  time  of  the  conveyance  of  the 
portion  first  granted.  United  States  v.  Appleton^  1  Sumner,  492; 
Lampman  v.  Milks^  21  N.  Y.  (7  Smith)  505 ;  Butterworth  v. 
Crawford,  46  N.Y.  (1  Sick.)  349 ;  S.  C,  7  Am.  Rep.  352  ;  Story  v. 
Odin,  12  Mass.  157;  Evart  v.  Cochrane,!  3\xv.  (N.  S.)  925;  Hall 
V.  Lund,  1  H.  &  Colt.  676  ;  Pyer  v.  Carter,  1  H.  &  N.  916.  As 
it  regards  easements  for  light  and  air  over  the  premises  of 
another,  this  rule  has  been  frequently  applied  in  England.  Gren- 
erally,  if  the  owner  of  a  building  has  windows  overlooking  an 
adjoining  lot,  the  owner  of  the  latter  may  build  directly  in  front 
of  the  windows  so  as  entirely  to  obstruct  their  light,  unless  they 
are  shown  to  be  ancient.  If,  however,  both  proprietors  obtained 
their  title  from  a  common  source,  the  same  grantor  having  con- 
veyed the  tenement  with  the  windows  to  one,  and  the  ground 
overlooked  to  another,  the  windows  cannot  be  obstructed.  And 
the  reas»on  assigned  is,  that  the  relative  qualities  of  the  two 
tenements  must  be  considered  as  fixed  at  the  time  of  their  sever- 
ance ;  each  retains,  as  between  it  and  the  other,  the  properties 
then  visibly  attached  to  it,  and  neither  party  has  a  right  after- 
ward to  change  them.  Cox  v.  Matthews,  Yentris,  237 ;  Palmer 
V.  Fletcher,  1  Lev.  122 ;  Compton  v.  Richards,  1  Price,  27 ;  Car- 
ham  V.  FisJc,  2  Cr.  &  J.  128 ;  Swanshorough  v.  Coventry,  9  Bing. 
305 ;  Roswell  v  Pryer,  6  Mod.  116 ;  S.  C,  12  id.  215.  Hubbard 
V.  Town,  33  Yt.  295 ;  Lampman  v.  Milks,  21  N.  Y.  (7  Smith) 
505.  The  time  during  which  the  lights  have  been  enjoyed  has 
nothing  to  do  with  the  rule  in  these  cases.  Whether  they  have 
existed  for  twenty  years  or  for  a  single  day,  they  are  equally 
protected.  Id.  Bobbins  v.  Barnes,  Hob.  131 ;  Coutts  v.  Graham, 
1  Mo.  &  Mai.  396.  A  free  passage  over  the  vendor's  adjoining 
unsold  land  for  so  much  light  and  air  as  may  be  reasonably  nec- 
essary for  the  beneficial  occupation  and  enjoyment  of  the  house 
is  impliedly  granted  by  the  vendor,  unless  the  privilege  is  ex- 
cluded by  the  express  terms  of  the  conveyance.  See  cases  cited 
above ;  Add.  on  Torts,  94. 

ARTICLE  II. 

OF  AMERICAN"  OASES  SIMILAE  TO  THE  ENGLISH  EULB. 

Section  1.  As  to  ancient  lights.  It  is  clear  that  no  easement 
or  servitude  of  a  right  of  prospect  can  be  acquired  at  common 
law  by  any  mere  length  of  enjoyment.  Hence,  an  action  does 
not  lie  for  obstructing  a  view,  unless  upon  express  covenant. 


ANCIENT  LIGHTS.  295 

Harwood  v.  Tompkins,  24  N.  J.  L.  (4  Zabr.)  425;  Parlcerv.  Foote, 
19  Wend.  309.  But  the  English  doctrine  of  a  right  to  lights  over- 
looking another' s  ground,  acquired  by  long  user,  upon  a  pre- 
sumption of  a  grant,  or  otherwise,  has  been  maintained  in  a  num- 
ber of  early  American  cases,  and  is  recognized  as  existing  law  in 
the  States  of  Illinois,  New  Jersey  and  Louisiana.  See  Gerher  v. 
Grabel,  16  111.  217  ;  Robeson  v.  Maxwell,  2  N.  J.  Eq.  (1  Green) 
57;  Barnett  v.  Johnson,  15  N.  J.  Eq.  (2  McCart.)  481;  Bur  el  v. 
Boishlanc,  1  La.  Ann.  407.  So,  this  doctrine  was  assumed  to  be 
the  law  in  South  Csnolina  in  McCready  v.  Thomson,  Dudley,  131. 
But,  in  a  subsequent  and  more  carefully  considered  case  {Napier 
V.  BulwinTde,  5  Rich.  311),  the  doctrine  was  discarded.  Like- 
wise, in  Alabama,  the  English  doctrine  was  sustained  in  Ray  v. 
Lynes,  10  Ala.  63;  since  overruled,  however,  in  Ward  v.  Nealy 
35  Ala.  602;  S.  C,  37  id.  501. 

With  the  exceptions  above  noted,  the  English  doctrine  of  an- 
cient lights  has  not  been  adopted  in  this  country.  On  the  other 
hand,  the  doctrine  has  been  expressly  rejected  in  numerous  well- 
considered  cases,  as  being  inapplicable  here,  because,  if  adopted, 
it  would  greatly  interfere  with  and  impede  the  rapid  changes  and 
improvements  constantly  going  on  in  our  cities  and  villages.  See 
post,  290,  art.  3. 

§  2.  As  to  implied  grant.  The  English  doctrine  as  to  the  acqui- 
sition of  easements  to  light,  by  implied  grant  {ante,  §  3),  has 
been  fully  accepted  in  some  of  the  American  cases,  while  in 
others  it  has  been  wholly  rejected  or  its  existence  denied.  In 
Story  V.  Odin,  12  Mass.  157,  which  is  believed  to  be  the  earliest 
American  case  in  which  the  doctrine  is  discussed,  the  law  was 
stated  in  accordance  with  the  English  authorities.  But,  in  a 
very  recent  ^lassachusetts  case,  all  the  authorities,  including 
that  of  Story  v.  Odin,  supra,  are  carefully  reviewed,  and,  as  a 
result,  the  law  is  stated  to  be,  that  no  grant  of  any  right  of  light 
or  air  over  adjoining  lands  is  to  be  implied  from  the  conveyance 
of  a  house,  having  windows  overlooking  land  retained  by  the 
grantor.  Keats  v.  Hugo,  115  Mass.  204;  S.  C,  15  Am.  Rep.  80.  In 
a  late  case  in  Ohio,  the  same  conclusion  was  arrived  at,  and  the 
weight  of  American  decisions  was  stated  to  be  in  accordance 
therewith.  Mullen  v.  Strieker,  19  Ohio  St.  135;  S.  C,  2  Am.  Rep. 
379.  In  confirmation  of  this  statement,  see  Morrison  v.  Mar- 
quardt,  24  Iowa,  35;  Haver sticJc  v.  Sipe,  33Penn.  St.  368;  Doyle 
V.  Lord,  39  Sup.  Ct.  (N.  Y.)  421;  affirming  S.  C,  48  How.  142; 
Johnson  v.  Oppenheim.,  55  N.  Y.  (10  Sick.)  280,  293;  Myers  v. 


296  ANCIENT  LIGHTS. 

Gemmel,  10  Barb.  537;  Palmer  v.  Wetmore,  2  Sandf.  (N.  Y.)  316. 
In  Maryland  the  English  doctrine  is,  however,  sustained,  and  the 
easement  and  servitude  of  light  may  be  implied  from  grant. 
Thus,  it  is  held  that,  by  the  grant  of  a  lot  and  all  the  rights, 
"  privileges,  appurtenances  and  advantages  to  the  same  belong- 
ing or  in  any  wise  appertaining,"  is  passed  the  easement  of  light 
and  ail-  as  to  windows  previously  opened  toward  another  lot  of 
the  grantor;  and  the  existence  of  the  easement  and  the  enjoyment 
thereof  by  the  grantee  is  no  breach  of  a  special  warranty  con- 
tained in  a  subsequent  deed  of  the  other  lot  to  another  grantee. 
Janes  v.  Jenkins^  34  Md.  1 ;  S.  C,  6  Am.  Eep.  300.  And  see,  in 
support  of  this  doctrine.  United  States  v.  Appleton^  1  Sumner, 
492;  Thurston  v.  Mink,  32  Md.  487;  Lampman  v.  Milks,  21  N. 
Y.  (7  Smith)  605 ;  Oregon  Iron  Company  v.  Trullinger,  3  Ore- 
gon, 1;  BiddleY.  Ash,  2  Ashm.  (Penn.)  211. 

ARTICLE  III. 

OF  THE  AMERICAN   RULE. 

Section  1.  In  general.  The  English  doctrine  of  "ancient  lights," 
or  prescriptive  right  to  light  and  air  by  long  user,  is  but  partially 
recognized  as  existing  in  a  few  of  the  American  States.  See 
ante,  295,  art.  2,  §  1.  By  the  course  of  decision  in  most  of  the 
States,  it  is  declared  to  form  no  part  of  the  law  of  this  country. 
It  is  wholly  unsuited  to  the  condition  of  our  growing  cities  and 
villages,  and  cannot  be  applied  to  them  without  working  the 
most  mischievous  consequences.  See  Parker  v.  Foote,  19 
Wend.  309 ;  Pierre  v.  Fernald,  26  Me.  436;  Mullen  v.  Strieker, 
19  Ohio  St.  135;  S.  C,  2  Am.  Rep.  379;  CJterry  v.  Stein,  11  Md.  1; 
Ward  V.  Neal,  37  Ala.  500;  Hubbard  v.  Toion,  33  Yt.  295; 
Hanerstick  v.  Sipe,  33  Penn.  St.  368;  Mahan  v.  Brown,  13  Wend. 
261;  Myers  v.  Oemmel,  10  Barb.  537;  Powell  v.  Sims,  5  W.  Ya.  1. 

So,  the  reasons  upon  which  it  has  been  held  that  no  grant  of  a 
right  to  light  and  air  can  be  implied  from  any  length  of  contin- 
uous enjoyment,  are  said  to  be  equally  strong  against  implying 
a  grant  of  such  a  right  from  the  mere  conveyance  of  a  house  with 
windows  overlooking  the  land  of  the  grantor.  "  To  imply  the 
grant  of  such  a  right  in  either  case,  without  express  words,  would 
greatly  embarrass  the  improvement  of  estates,  and,  by  reason  of 
the  very  indefinite  character  of  the  right  asserted,  promote  litiga- 
tion. The  simplest  rule,  and  that  best  suited  to  a  country  like 
ours,  in  which  changes  are  continually  taking  place  in  the  own- 


ANCIENT  LIGHTS.  297 

ership  and  the  use  of  lands,  is,  that  no  right  of  this  character 
can  be  acquired  without  express  grant  of  an  interest  in  or  cov- 
enant relating  to  the  lands  over  which  the  right  is  claimed." 
Keats  V.  Hugo,  115  Mass.  204;  S.  C,  15  Am.  Kep.  80,  91;  and  see 
MulleuY.  Strieker,  19  Ohio  St.  135;  S.  C,  2  Am.  Eep.  379.  From  a 
review  of  the  whole  subject,  the  general  doctrine  of  the  American 
courts  would  seem  to  be  that  an  implied  grant  of  an  easement 
of  light  will  not  be  sustained  except  in  cases  of  real  necessity, 
and  will  be  denied  when  it  appears  that  the  owner  of  the  domi- 
nant estate  can,  at  a  reasonable  expense,  have  other  lights  to  his- 
building.  Powell  v.  Sims,  5  W.  Ya.  1 ;  and  see  Hatens  v.  Klein, 
49  How.  (N.  Y.)  95. 

Vol.  L  — 38 


298  ANIMALS. 

CHAPTER  X. 

ANIMALS. 

TITLE  I. 

OF  THE  OWNERSHIP  OF  ANIMALS,  AND  OF  THE  RIGHTS, 
DUTIES  AND  LIABILITIES  OF  THEIR  OWNERS  OR  POS- 
SESSORS. 

ARTICLE  L 

OF  THE  OWNEESHIP  OF  ANIMALS. 

Section  1.  Definition^  and  general  principles.  The  word  "ani- 
mal "  is  frequently,  if  not  generally,  used  in  contradistinction  to 
the  words  "  bird,"  "fish,"  "insect,"  and  the  like.  But,  in  the  dis- 
cussion of  the  subject  in  this  chapter,  it  will  be  used  in  its  exten- 
sive meaning  of  a  living  being,  with  an  organized,  material  body, 
endowed  with  the  power  of  sensation  and  voluntary  motion,  and, 
of  course,  excluding  human  beings  ;  but  generally  including  all 
that  wing  the  air,  that  roam  the  fields,  or  swim  the  floods. 

§  2.  What  animals  are  subject  of  property.  The  common  law 
of  this  country,  as  well  as  that  of  England,  regards  all  animals 
as  capable  of  being  subjects  of  property  or  ownership,  either 
qualified  or  absolute.  The  division  of  animals  is  into  two  prin- 
cipal classes,  one  of  which  is  wild,  and  the  other  tame.  Animals 
of  a  wild  nature,  while  at  liberty  and  unreclaimed,  are  not  sub- 
jects of  absolute  property.  Tame  animals  are  subjects  of  abso- 
lute property.  An  animal  which  was  once  wild,  may  become 
tame,  and  thus  become  a  subject  of  ownership  like  other  tame 
animals.  So  wild  animals  may  be  captured  and  reduced  into 
actual  possession,  and  thus  become  the  property  of  the  captor  ; 
or  they  may  be  killed,  and  thus  become  property.  Wild  geese 
that  have  been  tamed  and  reclaimed  are  subjects  of  property. 
Amory  v.  Flynn,  10  Johns.  102.  Bees  are  of  a  wild  nature,  but 
they  may  be  reclaimed  and  hived,and  thus  become  the  property  of 
the  possessor.  Gillet  v.  Mason^  7  Johns.  16.  A  dog  is  a  species 
of  property,  and  his  owner  may  maintain  an  action  against  a, 
third  person  who  wrongfully  injures  or  kills  him.  Dunlap  v. 
Snyder,  17  Barb.  561  ;  Parker  v.  Mise,  27  Ala.  480.  483  ;  Dod- 


ANIMALS.  299 

son  V.  Ifoclc,  4  Dev.  &  Bat.  146;  Wheatley  v.  Harris,  4  Sneed, 
468 ;  Wolf  V.  CTialker,  31  Conn.  121 ;  Harrington  v.  Miles,  11 
Kans.  480.  The  rule  is  the  same  as  to  cats.  WTiittingham  v. 
Ideson,  8  Upper  Canada  Law  Journal,  14. 

Doves  are  of  a  wild  nature,  and  though  not  the  subject  of  lar- 
ceny in  a  wild  state,  they  may  become  property,  and  subjects  of 
larceny,  if  they  are  in  the  care  and  custody  of  a  person  who  has 
them  in  his  dove  cot  or  pigeon-house,  or  if  they  are  in  a  nest  and 
unable  to  fly.  Commonwealth  v.  Chace,  9  Pick.  15.  Pigeons 
may  become  property,  and  where  they  are  so  tame  that  they  re- 
turn home  every  night  to  roost  in  wooden  boxes  hung  on  the 
outside  of  the  house  of  their  owner,  they  are  subjects  of  larceny. 
Rex  V.  BrooJcs,  4  Carr.  &  Payne,  131.  Partridges  may  become 
property,  and  when  they  have  been  hatched  and  reared  by  a 
common  hen,  and  while  they  remain  with  her,  they  are  practi- 
cally under  the  power  and  dominion  of  the  owner  of  the  hen. 
Reg.  V.  SpicUe,  L.  R.,  1  C.  C.  158  ;  11  Cox' s  C.  C.  189.  A  turkey 
is  a  domestic  animal,  and  a  species  of  property.  Stale  v.  Tur- 
ner, QQ  N.  C.  618.  And  the  rule  is  the  same  as  to  a  peacock. 
Commonwealth  v.  Beaman,  8  Allen,  497. 

Oysters  planted  by  an  individual  in  a  bed  clearly  designated 
and  marked  out  in  navigable  waters,  which  are  free  to  all  the  in- 
habitants of  the  State,  are  the  property  of  the  person  who  planted 
them.  Fleet  v.  Hegeman,  14  Wend.  42 ;  Decker  v.  Fisher,  4 
Barb.  592  ;  Lowndes  v.  Dicker  son,  34  id.  586. 

Inasmuch  as  every  kind  of  domestic  animal  is  a  species  of 
property,  it  is  not  necessary  to  search  for  all  the  cases  which 
have  been  decided  in  relation  to  the  various  kinds  of  animals 
held  to  be  property. 

And,  in  reljjtion  to  wild  animals,  although  not  generally  prop- 
erty, when  wild,  and  free,  yet  when  tamed,  or  when  in  actual 
confinement,  as  in  cages,  or  other  mode  of  actual  possession  and 
control,  they  are  as  such  property  as  tame  animals.  The  owner 
of  the  animals  in  a  menagerie  is  as  much  protected  in  his  prop- 
erty as  the  owner  of  the  animals  or  stock  upon  a  farm. 

§  3.  What  animals  are  not  subjects  of  property.  There  is  no 
absolute  property  in  wild  animals,  free,  and  in  a  state  of  nature. 
And  while  they  remain  at  large,  and  untamed,  they  are  not  the 
subjects  of  ownership.  If  they  are  caught  and  confined,  they 
are  property  so  long  as  they  are  in  the  possession  and  under  the 
control  of  the  captor  or  possessor.     Bnt,   if  they  escape,  and 


300  ANIMALS. 

regain  their  natural  liberty,  the  owner's  qualified  property 
ceases,  and  the  animals  cease  to  be  property. 

If,  however,  wild  animals  have  been  tamed,  and  they  stray 
away  from  their  owner,  but  without  regaining  their  natural  lib- 
erty, the  owner  does  not  lose  his  property  in  them.  Amory  v. 
Flyn,  10  Johns.  102. 

§  4.  Title  to  animals,  how  acquired.  The  title  to  animals  may 
be  acquired  in  any  of  the  modes  by  which  other  personal  prop- 
erty is  acquired,  as  by  sale,  gift,  inheritance,  and  the  like. 

The  property  in  wild  animals  is  in  the  owner  of  the  land  on 
which  they  are  started  and  captured,  and  not  in  the  captor. 
Blades  v.  Higgs,  12  C.  B.  (N.  S.)  501;  8  Jur.  (N.  S.)  1012;  10 
W.  R.  318;  5  L.  T.  (N.  S.)  752;  affirmed,  13  B.  C.  (N.  S.)  844;  32  L. 
J.  (C.  P.)  182;  7  L.  T.  (N.  S.)  834;  and  in  JH.  L.  11,  H.  L.  Cas. 
621;  13  W.  R.  927;  34  L.  J.  (C.  P.)  286;  Goffy.  Kilts,  15  Wend. 
550.  Wild  bees,  in  a  bee-tree,  belong  to  the  owner  of  the  soil 
where  the  tree  stands.  Ferguson  v.  Miller,  1  Cow.  243;  Adams 
V.  Burton,  43  Vt.  30 ;  Idol  v.  Jones,  2  Dev.  L.  (N.  C.)  162  ;  Cock 
V.  Weatherhy,  5  Sm.  &  Marsh.  333. 

The  mere  finding  of  a  swarm  of  bees  in  a  tree  upon  the  lands 
of  another,  and  marking  the  tree  with  the  initials  of  the  finder's 
name,  does  not  give  him  any  property  in  the  bees.  Gillet  v. 
Mason,  7  Johns.  1 6. 

So,  if  a  person  finds  a  swarm  of  bees,  in  a  tree  upon  the  lands 
of  another,  who  gives  him  permission  to  take  them,  and  he  then 
marks  the  tree  with  his  initials,  but  does  nothing  more,  this  will 
not  entitle  him  to  recover  the  value  of  the  bees  from  a  third  per- 
son who  afterward  took  them  by  the  permission  of  the  owner 
of  the  tree.  Ferguson  v.  Miller,  1  Cow.  243.  But,  if  the  finder 
of  the  bees  is  engaged  in  the  act  of  cutting  down  tjie  tree,  by  the 
permission  of  the  owner,  and  while  thus  engaged,  he  is  driven 
away  from  such  work  and  prevented  from  cutting  down  the 
tree,  by  a  third  person,  who,  subsequently  to  the  first  license, 
obtained  a  license  from  the  owner  of  the  tree  to  take  the  bees, 
but  without  revoking  the  first  license,  the  person  first  beginning 
to  cut  the  tree  will  have  a  superior  right  to  the  bees,  and  may 
maintain  an  action  against  such  third  person  for  cutting  down 
the  tree  and  taking  away  the  bees  and  honey.  Adams  v.  Bur- 
ton, 43  Vt.  30,  36. 

If  bees  have  been  reclaimed  and  hived,  but  leave  the  hive  and 
go  into  a  tree  upon  the  lands  of  another  person,  the  owner  of 
the  bees  may  maintain  an  action  against  a  third  person  who  de- 


ANIMALS.  301 

stroys  the  bees  and  takes  the  honey.  Ooff  v.  Kilts^  15  Wend. 
550,  The  owner  of  the  bees  retains  his  title  in  them  so  long  as 
he  can  identify  them,  and  is  able  to  regain  his  possession  of 
them.  lb. 

The  title  to  oysters  may  be  acquired  by  planting,  as  has  been 
seen,  ante^  299,  §  2.  But,  a  person  who  plants  oysters  in  navigable 
waters,  opposite  to  the  lands  of  another  person,  does  not  thereby 
acquire  such  a  possession  of  them  as  will  enable  him  to  maintain 
an  action  against  such  adjacent  owner  for  taking  them  away. 
BrinckerTioff  v.  StarMns,  11  Barb.  248;  see,  also,  Arnold  v. 
Mundy,  1  Halst.  (N.  J.)  1 ;  Siate  v.  Taylor,  3  Dutch.  (N.  J.)  117; 
1  Broom  &  Had.  Com.  799,  800,  436,  437  Wait's  ed. 

The  natural  increase  of  domestic  animals  belongs  to  the  owner 
of  the  mother  of  the  animals  thus  produced.  Hanson  v.  MilleU, 
55  Me.  184  ;  Stewart  v.  Ball,  33  Mo.  154  ;  Concklin  v.  Havens, 
12  Johns.  314.  If,  however,  the  dam  or  mother  is  hired  out  for  a 
limited  time,  the  increase  during  that  period  belongs  to  the  hirer 
of  the  animal.  lb. 

If  the  owner  of  a  mare  offers  the  use  of  her  to  be  put  to  horse, 
and  promises  another  person  that  if  he  will  have  her  put  to  horse, 
and  pay  the  charges  for  it,  he  shall  own  the  foal  or  colt,  if  any, 
and  such  person  has  the  mare  put  to  horse,  and  pays  the  charges, 
and  afterward  has  complete  charge  and  possession  of  the  foal, 
the  title  to  it  will  be  in  him.  Linnendoll  v.  TerTiune,  14  Johns. 
222.  But,  if  the  agreement  is  such,  that,  by  its  terms,  it  cannot 
be  performed  within  a  year,  the  agreement  will  be  void  by  the 
statute  of  frauds,  and  the  title  to  the  colt  will  be  in  the  owner  of 
the  mare.  Lockwood  v.  Barnes,  3  Hill,  128  ;  Harman  v.  Beene, 
18  C.  B.  587. 

Mere  pursuit  of  a  wild  animal  does  not  give  the  pursuer  any 
property  in  it,  and,  therefore,  no  action  lies  against  a  person  for 
killing  and  taking  a  fox,  which  was  pursued  by,  and  in  view  of 
the  hunter  who  found,  started  and  pursued  it,  and  was  on  the 
point  of  seizing  it  when  killed  by  such  other  person.  Pier  son 
V.  Post,  3  Caines,  175.  So,  a  hunter  who  pursues  a  deer  and 
wounds  it,  and  follows  its  track  by  its  blood,  until  night,  when 
he  abandons  the  pursuit  for  the  night,  but  resumes  it  in  the 
morning,  has  no  title  to  it  as  against  one  who  killed  it  the 
night  before.  Buster  v.  Newkirk,  20  Johns.  75.  So  where  a 
person  is  engaged  in  fishing,  and  has  nearly  encompassed  a 
quantity  of  fish  with  his  net,  and  a  third  person,  by  rowing  his 
boat,  and  splashing  the  water  about,  frightens  the  fish  so  that 


802  ANIMALS. 

they  escape,  no  title  is  acquired  to  the  fish,  and  no  action  lies 
against  the  wrong-doer  for  the  value  of  the  fish,  on  the  ground 
that  they  belong  to  the  owner  of  the  net,  or  that  they  were  in  his 
possession.  Young  v.  HlcTiens,  6  Ad.  &  E.  (N.  S.)  606.  As  to  the 
right  to  take  fish,  see  1  Broom  &  Had.  Com.  436,  437,  Wait's  ed. 
§  5.  Title,  Low  transferred  or  lost.  It  may  be  said,  generally, 
that  the  title  to  animals  may  be  transferred  by  any  mode  which 
is  sufficient  to  transfer  the  title  to  other  personal  property.  It 
may  be  transferred  by  sale,  gift,  inheritance;  or,  if  the  prop- 
erty be  wild  animals,  then  it  may  be  by  their  escape  and  return  to 
a  state  of  nature,  ante,  299,  §  3.  Whether  deer  in  a  park  go  to  the 
heir  with  the  land,  or  to  the  executor,  see  Morgan  v.  Abergav- 
enny, 8  Man.  Gr.  &  Scott,  768 ;  Ford  v.  Tynte,  2  Johns.  &  H. 
160.    When  reclaimed  they  become  personal  property.  lb. 

ARTICLE  IL 

EIGHTS  OF   OWNERS  OE  POSSESSOES  OF  ANIMALS. 

Section  1 .  Rights  of  the  owner  of  animals.  The  rights  of  the 
owner  of  an  animal  are  the  same  as  those  of  the  owner  of  any 
other  personal  property.  He  may  use,  sell,  or  give  it  away.  If 
it  is  wrongfully  taken,  detained,  destroyed  or  injured,  he  may 
maintain  an  action  for  the  recovery  of  its  possession,  or  for  dam- 
ages for  its  destruction  or  injury.     '^QQpost,  302-306,  §§  3,  4,  5. 

§  2.  Rights  of  the  possessor  of  animals.  It  may  be  said,  gen- 
erally, that  the  rights  of  the  possessor  of  animals  are  the  same 
that  they  would  be  in  relation  to  other  personal  property.  A 
wrongful  injury  to  his  rights  as  possessor  of  the  property  will  give 
him  a  right  of  action  against  the  wrong-doer,  according  to  the 
nature  of  the  interest  of  the  possessor  and  the  character  of  the 
wrong-doer.  For  wrongfully  taking  the  property  from  his  posses- 
sion, or  for  wrongfully  detaining  it,  the  law  gives  the  injured 
party  a  remedy  by  action  for  the  recovery  of  its  possession.  See 
Replevin.  If  the  injury  to  the  property  is  such  as  to  injure 
the  possessor' s  rights  in  it,  an  action  lies  for  the  resulting  dama- 
ges.    See  Case;  Trespass;  Trover. 

§  3.  Wrongfully  taking  animals.  The  injury  arising  from  a 
wrongful  taking  of  animals  or  other  personal  property  is  gener- 
ally an  injury  to  the  possession,  or  the  rights  of  possession.  In 
some  cases,  it  may  be  desirable  to  regain  the  possession  of  the 
animal  taken,  while  in  others  a  recovery  of  damages  for  the 
wrong  would  be  a  satisfactory  remedy.     Where  it  is  desired  to 


ANIMALS.  303 

regain  the  possession  of  tlie  property,  an  action  of  replevin  is 
usually  a  prompt  and  efficient  remedy.  See  Replevin.  If  dam- 
ages will  afford  a  satisfactory  compensation  for  the  injury,  an 
action  on  the  case,  or  of  trespass,  or  trover,  may  be  resorted  to 
as  a  remedy. 

In  some  cases,  the  injured  party  may  treat  the  wrong-doer  as 
though  he  were  a  purchaser  of  the  property  wrongfully  taken  by 
him.  The  law  permits  a  waiver  of  the  tort,  and  allows  a  recovery 
of  the  value  of  the  property,  in  the  same  manner  it  would  had 
there  been  a  sale  instead  of  a  wrongful  taking  of  such  property. 
See  Waiver  of  Tort;  Assumpsit. 

An  officer  has  no  right  to  detain  horses,  on  the  ground  that 
they  are  running  at  large,  in  violation  of  a  town  ordinance,  where 
the  horses  escaped  from  their  owner' s  inclosure  against  his  will, 
and  when  he  immediately  went  in  pursuit  of  them.  Kinder  v. 
Oillespie,  63  111.  88  ;  see  Walters  v.  Glats,  29  Iowa,  437. 

An  owner  of  land  has  no  right  to  detain  a  domestic  animal 
belonging  to  a  neighbor,  which  has  straj^ed  upon  his  land,  on 
several  occasions,  and  done  injury,  until  he  is  paid  all  the  dam- 
ages for  such  injuries.  Ladue  v.  Branch,  42  Yt.  574.  His  right  is 
limited  to  removing  the  animal  from  his  land,  or  to  impounding 
it  according  to  law,  lb. ;  Pratt  v.  Petrie,  2  Johns.  191 ;  Sackrider 
v.  McDonald,  10  id.  253  ;  Merritt  v.  O  Neil,  13  id.  477  ;  Hale  v. 
GlarTi,  19  Wend.  498. 

A  person  who  finds  a  horse  at  large,  and  takes  it  into  his  pos- 
session and  uses  it  in  such  a  manner  that  it  is  injured,  will  be 
liable  to  the  owner  for  such  injury.  Murgoo  v.  Cogswell,  1  E.  D. 
Smith,  359. 

§  4.  Wrongful  destruction  of  animals.  In  many  cases  the 
right  to  maintain  an  action  depends  upon  the  plaintiff's  right  of 
possession  of  the  property  destroyed.  But  the  real  owner  of  an 
animal  may  maintain  an  action  for  the  injury  to  his  reversionary 
rights  in  it,  although  at  the  time  of  its  destruction  the  right  of 
possession  for  a  temporary  period  was  in  another  person. 

The  owner  of  a  dog  may  maintain  an  action  against  one  who 
wrongfully  kills  or  injures  him.  Brent  v.  Kimhall,  60  111.  211 ; 
UJilein  V.  Cromaclc,  109  Mass.  273  ;  WJieatley  v.  Harris,  4  Sneed, 
468 ;  Dodson  v.  Moclc,  4  Dev.  &  Bat.  L.  (N.  C.)  146  ;  Perry  v. 
PMpps,  10  Ired.  (N.  C.)  259  ;  Parlcer  v.  Mlse,  27  Ala.  480,  483. 

But  no  action  lies  against  a  railroad  company  for  running  over 
and  killing  a  dog  which  goes  upon  its  track  without  any  author- 


804  ANIMALS. 

ity  from  the  company.  Wilson  v.  Railroad  Company ^  10  Rich. 
(S.  C.)  52. 

An  action  lies  for  unlawfully  killing  a  cat.  WhittingJiam 
V.  Ideson^  8  Upper  Canada  L.  J.  14. 

So  an  action  lies  for  killing  domestic  fowls,  such  as  hens,  even 
though  they  were  trespassing  at  the  time  upon  the  lands  of  the 
person  who  killed  them.  Matthews  v.  Fiestel,  2  E.  D.  Smith,  ■pO ; 
Clark  V.  Keliher,  107  Mass.  406  ;  Johnson  v.  Patterson,  14  Co^. 
1,11. 

It  is  actionable  to  kill  a  hog  which  has  killed  one  chicken,  and 
attempted  to  kill  another,  even  though  found  about  seventy-five 
yards  from  the  place  where  the  defendant' s  chickens  usually  ran, 
and  where  the  hog  was  killed.  Morse  v.  Nixon,  6  Jones'  Law 
(N.  C),  293  ;  1  Broom  &  Had.  800,  note  Wait's  ed. 

The  right  to  maintain  an  action  for  the  wrongful  killing  of  do- 
mestic animals  is  so  well  settled,  and  so  well  known,  that  the 
citation  of  authorities  seems  unnecessary. 

Actions  have  been  maintained  in  numerous  cases  for  unlaw- 
fully killing  sheep.  Bessant  v.  Great  Western  B.  Co.,  8  C.  B. 
(N.  S.)  368. 

Or  horses.  Chapman  v.  New  York  Central  E.  R.  Co.,  31  Barb. 
399  ;  33  N.  Y.  (6  Tiff.)  369  ;  Bishop  v.  Ely,  9  Johns.  294.  See 
Negligence;  Railroads. 

Or  mules.  Louisville  &  Nashmlle  R.  R.  Co.  v.  Wainscott,  3 
Bush,  149. 

Or  cows  or  other  cattle.  McDowell  v.  New  York  Central  R. 
R.  Co.,  37  Barb.  195;  Indianapolis^  etc.,  R.  R.  Co.  v.  Truitt, 
24  Ind.  162;  YanLeumn  v.  Lyke,  1  N.Y.  (1  Comst.)  515;  4  Denio, 
127  ;  Angus  v.  Radin,  2  South.  815. 

Or  swine.     Morse  v.  Nixon,  6  Jones'  L.  (N.  C.)  293. 

One  who  sells  hay  upon  which  a  poisonous  substance  has  been 
spilt,  is  liable  in  dam^es  to  the  purchaser  of  the  hay,  if  his  cow 
eats  it  and  is  thereby  poisoned  and  killed.  French  v.  Vining, 
102  Mass.  132  ;  3  Am.  Rep.  440. 

The  general  right  to  maintain  an  action  for  wrongfully  kill- 
ing domestic  animals  is  not  usually  disputed ;  but  it  is  claimed 
that  some  facts  or  circumstances  in  the  particular  case  excused 
or  justified  the  killing. 

Actions  are  frequently  brought  against  railroad  corporations 
for  killing  animals,  and  the  usual  defense  is  interposed  that  the 
animals  were  wrongfully  upon  the  track,  and  that  the  owner's 
negligence  contributed  to  the  result,  and  bars  his  right  of  action. 


ANIMALS.  305 

McDonnell  v.  Pittsfield  &  North  Adams  R.  R.,  115  Mass.  564; 
Eames  v.  Salem  &  Lowell  R.  R.,  98  id.  560 ;  Maynard  v,  Boston 
&  Maine  R.  R.,  115  id.  458  ;  Tonawanda  R.  R.  Co.  v.  Munger,  5 
Denio,  255;  4  N".  Y.  (4  Conist.)  349  ;  New  Tor  A'  &  Erie  R.  R.  Co.  v. 
Skinner,  19  Penii.  St.  298;  Cincinnati,  etc.,  R.  R.  Co.  v.  Waterson, 
4  Ohio  St.  424;  Towner  v.  Providence  &  Worcester  R.  R.,  2  R.  I. 
404  ;  Louisville  &  Frankfort  R.  R.  v.  Ballard,  2  Mete.  (Ky.)  177 ; 
Vandegrifi  v.  Rediker,  2  Zab.  185. 

It  is  not  to  be  understood  from  these  cases  that  an  action  could 
not  have  been  maintained  if  the  killing  had  been  intentional ;  but 
merely  that  an  owner  who  permits  his  animals  to  trespass  upon 
a  railroad  track,  must  take  the  chances  of  their  being  killed  by 
the  trains  which  are  running  in  a  proper  manner.  lb.  ;  Shearm.  & 
Redf.  on  Neg.,  §  454. 

An  action  will  not  lie  against  the  owner  of  land,  for  carelessly 
leaving  maple  syrup  in  open  buckets  on  his  uninclosed  wood- 
land, where  the  cow  of  a  third  person  wrongfully  enters  upon 
the  land,  and  drinks  the  syrup,  which  causes  her  death.  Bush 
V.  Brainard,  1  Cow.  78.  Nor  for  leaving  open  a  hole  in  the 
ground  of  his  uninclosed  woodlands  into  which  trespassing  cat- 
tle fall.    Kniglit  Y.Ahert,  6  Penn.  St.  472. 

§  5.  Wrongful  injury  of  animals.  The  same  principles  of  law 
which  give  a  remedy  for  destroying  animals,  also  give  a  similar 
remedy  for  a  wrongful  injury  done  to  them.     See  ante,  303,  §  4. 

A  person  who  chases  a  horse  out  of  his  field  with  a  large  fierce 
dog  does  an  unlawful  act,  and  is  liable  to  the  owner  of  the  horse 
for  any  injury  caused  by  such  act.  Aonick  v.  O^Hara,  6  Blackf. 
268.  A  railroad  corporation  which  neglects  to  provide  barriers,  or 
to  fence  its  track  according  to  law,  is  liable  for  injuries  done  to 
cattle  which  enter  upon  its  track  in  such  unfenced  or  unpro- 
tected place.  Kelilter  v.  Conn.  River  R.  R.  Co.,  107  Mass.  311 ; 
see,  also.  Negligence;  Railroads. 

One  who  wrongfully  drives  his  horse  and  wagon  against  the 
horse  of  another  who  is  lawfully  in  the  highway,  is  liable  for 
the  injury  done  to  such  horse.     Bishop  v.  Ely,  9  Johns.  294. 

An  action  lies  against  one  who  hires  a  horse  to  go  to  a  p;irticu- 
lar  place,  but  wrongfully  goes  farther,  or  to  a  difterent  place, 
and  injures  the  horse  in  so  doing.  Dishroio  v.  Tenhrheck,  4:'E. 
D.  Smith,  397  ;  Lucas  v.  Trumlull,  15  Gray,  306.  The  owner 
of  the  horse  may  ratify  the  wrongful  act,  and  will  do  so  by  re- 
ceiving payment  for  the  full  distance  traveled,  so  far  as  it 
relates  to  a  conversion  of  the  horse.     Ritch  v.  Hawes,  12  Pick. 

Vol.  L  — 39 


306  ANIMALS . 

135.  If  the  hirer  has  injured  the  horse  by  ill  usage  on  the  jour- 
ney, the  action  must  be  brought  for  that.  lb. 

One  who  hires  a  horse  for  a  particular  journey  is  only  respon- 
sible for  negligence,  unskillfulness,  or  willful  misconduct;  and, 
if  the  horse  becomes  lame,  or  is  injured,  while  properly  treated, 
the  hirer  will  not  be  liable.  Harrinigton  v.  8nyder,  3  Barb.  380; 
Millon  V.  Salisbury,  13  Johns.  211.  So,  one  who  is  employed 
to  drive  horses,  which  are  injured  while  using  them,  will  not  be 
liable  for  the  damages  resulting,  unless  the  injury  was  caused 
by  his  negligence,  unskillfulness,  or  willful  misconduct,  and  the 
burden  of  proving  this  lies  on  the  owner  of  the  horses.  Newton 
V.  Po^e,  1  Cow.  109. 

§  6.  Wrongful  conTersion  of  animals.  An  action  will  lie  for  the 
conversion  of  animals  whenever  an  action  may  be  sustained  for 
a  wrongful  taking  of  them,  or  for  an  unlawful  conversion  of 
them,  even  where  the  original  taking  was  lawful.  See  Tres- 
pass ;  Trover. 

And,  as  an  illustration  of  a  conversion  of  a  horse  whose  pos- 
session was  lawfully  obtained,  the  hiring  of  a  horse  to  go  to  a 
particular  place,  and  then  driving  the  horse  to  a  more  distant, 
or  to  different  place,  will  be  a  conversion  of  the  horse,  for  which 
an  action  will  lie.  Dlshroio  v.  Tenbroeck,  4  E.  D.  Smith,  397; 
Lucas  V.  Trumbull,  15  Gray,  306;  Msh  v.  Ferris,  5  Duer,  49. 
The  owner  may  waive  the  right  of  action  for  a  conversion  by  ac- 
cepting payment  for  the  full  distance  traveled.  Bitch  v.  Hawes, 
12  Pick.  135. 

§  7.  Bights  as  to  mode  or  place  of  keeping.  It  is  a  general 
maxim  of  the  law  that  every  person  shall  enjoy  his  own  prop- 
erty in  such  a  manner  as  not  to  injure  that  of  another  person. 
Broom' s  Leg.  Max.  365.  But,  as  has  already  been  stated,  ante, 
143,  144,  tliere  are  many  acts  which  may  be  done  that  are  inju- 
rious to  another,  and  yet  the  injured  party  will  have  no  right  of 
action. 

The  owner  of  land  may  use  it  for  the  purpose  of  pasturing  his 
sheep  which  have  an  infectious  disease,  and  he  will  not  be  liable 
to  an  adjoining  land  owner  though  his  sheep  become  diseased 
in  consequence.    Fisher  v.  ClarTc,  41  Barb.  329. 

But,  while  one  has  a  right  to  use  his  own  premises  as  a  hospi- 
tal for  his  diseased  horses,  he  has  no  right  to  permit  horses 
which  have  a  contagious  disease  to  go  at  large  in  the  highway, 
or  to  water  them  at  a  public  tank  used  for  watering  the  sound 
horses  of  other  persons;  and,  if  the  horses  of  such  other  per- 


ANIMALS.  307 

sons  become  infected  with  tlie  disease  to  tlie  injury  of  their  owner, 
an  action  lies  for  the  damages  sustained.  Mills  v.  New  York 
&  Harlem  R.  R.  Co.,  2  Rob.  326;  affirmed,  41  N.  Y.  (2  Hand) 
619,  n. 

And,  if  the  owner  of  glandered  horses  takes  them  upon  the 
farm  of  another  person  having  sound  horses,  which  become  in- 
fected with  the  disease,  and  die  of  it,  an  action  lies  for  thus 
communicating  the  disease  to  the  sound  horses.  Hlte  v.  Bland- 
ford,  45  111.  9;  Penton  v.  Murdoch,  18  W.  R.  382;  22  L.  T.  (N. 
S.)  371.  So  where  diseased  sheep  are  permitted  by  their  owner 
to  trespass  upon  the  lands  of  another  person,  whose  sheep  are 
infected,  and  die  in  consequence,  an  action  may  be  maintained 
by  the  injured  party  against  the  owner  of  the  trespassing  sheep. 
Barnum  v.  Vandusen,  16  Conn.  200.  And  a  person  who  is  per- 
mitted to  occupy  land,  under  a  mere  license,  will  be  liable  to  an 
action  if  he  pastures  diseased  sheep  upon  it,  which  communi- 
cate the  disease  to  the  sheep  of  the  licensor,  who  was  ignorant 
of  the  nature  of  the  disease,  and  who  was  falsely  informed  by 
the  party  pasturing  the  sheep  there,  that  there  was  no  danger 
from  such  diseased  sheep.  Eaton  v.  Winnie,  20  Mich.  156;  4 
Am.  Rep.  377;  see,  also,  Mullett  v.  Mason,  L.  R.,  1  C.  P.  559. 

The  owner  of  animals  must  keep  them  in  such  a  place,  and  in 
such  a  manner  that  they  will  not  injure  other  animals.  And  if  he 
permits  a  cow,  which  he  knows  is  accustomed  to  hook  other  ani- 
mals, and  it  hooks  and  kills  the  horse  of  another  person  in  the 
highway,  while  the  cow  was  on  the  way  to  her  watering  place, 
the  owner  of  the  cow  will  be  liable  for  the  value  of  the  horse. 
Coggsioell  v.  Baldwin,  15  Yt.  404.  So,  where  a  sucking  colt  is 
following  its  dam,  which  is  led  by  her  owner,  in  a  highway,  where 
it  is  kicked  and  killed  by  a  horse  which  has  been  turned  loose  in 
the  highway  without  a  keeper,  and  where  the  owner  of  the  colt 
was  exercising  reasonable  care,  he  may  recover  the  value  of  the 
colt  from  the  owner  of  the  horse,  although  it  was  not  vicious. 
Barnes  v.  Chapin,  4  Allen,  444. 

ARTICLE  III. 

DUTIES   AND   LIABILITIES  OF    OWNEES  OE  POSSESSOES  OF  AKIilALS. 

Section  1.  Generally,  when  owner  liaWe.  The  common  law 
requires  the  owners  of  all  animals  to  so  keep  or  restrain  them  as 
to  prevent  them  from  trespassing  upon  the  lands  of  other  per- 
sons.   And,  if  this  duty  is  neglected  or  disregarded,  and  his 


308  ANIMALS. 

animals  trespass  upon  the  lands  of  another,  an  action  will  lie 
against  the  owner  for  such  trespass.  Stafford  v.  Ingersol^  3 
Hill,  38;  Angus  v.  Radin,  2  South.  815;  DolpJi  v.  Ferris,  7 
Watts  &  S.  367.  Ellis  v.  Loftus  Iron  Co.,  L.  B,.,  10  C.  P.  10; 
S.  C,  11  Eng.  Rep.  214,  229,  n  ;  McBride  v.  Lynd,  55  111.  411 ; 
Pierce  v.  Hosmer,  QQ  Barb.  345. 

But  the  owner  of  cattle  is  not  liable  in  trespass  for  the  dam- 
age done  by  his  cattle  while  in  the  care  and  keeping  of  an  agis- 
tor who  took  them  to  pasture  at  a  specified  price.  Ward  v. 
Brown,  64  111.  307;  16  Am.  Rep.  561;  Bossell  v.  Cottom,  31 
Penn.  St.  525. 

Where  an  injury  is  caused  by  an  unavoidable  accident,  as 
where  a  team  is  frightened  and  runs  away  without  any  fault  of 
the  owner,  no  action  lies  for  the  damage  done  by  the  team. 
Brown  v.  Collins,  63  N.  H.  442 ;  16  Am.  Rep.  372 ;  Western 
Union  Telegraph  Co.  v.  Quinn,  56  111.  319;  Sliawham  v.  ClarJce, 
24  La.  Ann.  390.     See  ante,  160,  161. 

§  2.  Injuries  to  persons  by  domestic  animals.  As  a  general  rule 
the  common  law  does  not  hold  the  owner  of  ordinary  domestic 
animals  liable  for  injuries  which  they  do  to  the  person  of  another, 
unless  it  is  shown  that  the  particular  animal  was  accustomed  to 
injure  persons,  or  had  an  inclination  to  do  so,  to  the  knowledge 
of  the  owner.  Earl  v.  Van  Alstine,  8  Barb.  630  ;  Smith  v.  Cau- 
sey, 22  Ala.  568 ;  Dearth  v.  Baker,  22  Wis.  73. 

But  where  an  animal  is  accustomed  to  do  injuries  to  persons, 
and  the  owner  has  notice  or  knowledge  of  that  fact,  he  is  liable 
for  any  injury  which  such  animal  may  do  to  another  person. 
Fair  child  v.  Bentley,  30  Barb.  147  ;  Marsh  v.  Jones,  21  Vt.  378; 
Arnold  v.  Norton,  25  Conn.  92  ;  Shirfcy  v.  Bartley,  4  Sneed,  58; 
McCasMll  V.  Elliott,  5  Strobh.  196  ;  Laverone  v.  Mangianti,  41 
Cal.  138;  S.  C,  10  Am.  Rep.  269,  270,  note. 

Where  the  vicious  habit  of  an  animal  is  directly  dangerous,  as 
by  kicking  or  biting  by  a  horse,  or  biting  by  a  dog,  or  hooking 
by  a  horned  animal,  the  owner,  if  the  habit  is  known  to  him,  is 
bound  to  notify  those  using,  caring  for,  or  dealing  with  the  ani- 
mal ;  though  the  rule  is  otherwise  where  the  habit  is  not  danger- 
ous, as  where  a  horse  has  a  habit  of  "pulling"  back  upon  the 
halter  when  excited  or  restless.  And  if  such  habit  should  hap- 
pen to  cause  injury  to  one  taking  care  •  of  the  horse,  without 
notice  of  the  habit,  no  action  lies.  Keshan  v.  Gates,  2  N.  Y.  S.  C. 
(T.  &  C.)  288. 
A  person  may  keep  a  dog  for  the  necessary  defense  of  his 


ANIMALS.  309 

house,  garden  or  fields,  and  may  cautiously  use  him  for  that 
purpose  in  the  night-time^  but  if  he  permits  a  mischievous  or 
ferocious  dog  to  be  ^t  large  on  his  premises  in  the  day-time^  he 
will  be  liable  for  the  damage  done  by  the  dog  to  a  person  com- 
ing upon  the  premises,  even  though  such  person  was  a  trespasser 
by  hunting  in  the  woods  of  the  dog's  owner,  and  without  his 
license.  Loomis  v.  Terry,  17  Wend.  496  ;  Sarch  v.  Blackburn, 
4  C.  &  P.  297;  Broclc  v.  Copeland,  1  Esp.  203.  But  in  such  a 
case  if  the  person  injured  is  not  a  trespasser,  an  action  lies,  as 
where  a  stranger  who,  without  authority  from  the  owner  of  the 
premises,  enters  thereon  for  a  lawful  purpose,  by  invitation  of 
one  who  is  lawfully  there  by  license  of  the  owner.  Kelly  v.  Til- 
ton,  2  Abb.  Ct.  App.  495  ;  3  Keyes,  263. 

If  a  person  provokes  or  causes  a  dog  to  bite  him  by  kicking 
or  other  aggressive  acts,  and  not  from  any  mischievous  propen- 
sity of  the  dog,  no  action  can  be  maintained  by  the  party  bitten. 
KeigMlinger  v.  Egan,  65  111.  235. 

Where  there  is  no  negligence  on  the  part  of  the  owner  or  his 
driver,  and  a  team  becomes  frightened  and  runs  away  and  injures 
a  person,  no  action  lies  for  the  damages  sustained  by  the  injured 
party.  Holmes  v.  Mather,  L.  R.,  10  Exch.  261 ;  16  Am.  Rep.  384, 
in  note;  Weldon  v.  Harlem  R.  R.  Co.,  5  Bosw.  576  ;  Sullivan y. 
Scripture,  3  Allen,  564. 

But  where  the  owner  or  his  servant  is  negligent,  and  a  horse 
runs  away  and  injures  a  third  person,  an  action  lies  against  the 
owner.  McCaliiU  v.  Kipp,  2  E.  D.  Smith,  413;  lllidge  v.  Good- 
win, 5  Carr.  &  P.  190. 

A  man  has  a  right  to  keep  a  dog  or  any  other  animal,  provided 
he  is  kept  under  restraint,  so  that  persons  pursuing  their  ordi- 
nary or  lawful  avocations  are  not  exposed  to  danger.  Logue  v. 
Link,  4  E.  D.  Smith,  63.  No  action  lies  where  a  child  of  three 
years  of  age  is  suffered  to  go  unattended  into  a  room  where  a  dog 
accustomed  to  bite  persons  is  kept  chained  in  the  owner's  bed- 
room, and  when  the  child's  parents  knew  that  the  dog  was  accus- 
tomed to  bite.  lb. 

§  3.  Injuries  to  animals  by  domestic  animals.  There  are  many 
cases  in  which  injuries  done  by  one  animal  to  another  will  give 
a  right  of  action  to  the  owner  of  the  injured  animal  against  the 
owner  of  the  animal  doing  the  act  which  causes  the  damage. 
As  will  be  seen  in  a  subsequent  place,  post,  311,  §  5,  notice  or 
knowledge  is  in  some  cases  required  to  be  shown  before  the 
owner  is  liable  for  injuries  committed  by  domestic  animals.     But 


310  ANIMALS . 

where  the  animal  doing  the  injury  is  trespassing  upon  the  lands 
of  the  owner  of  the  injured  animal  at  the  time  when  the  act  is 
done,  it  is  not  necessary  to  show  any  notice  or  knowledge  on  the 
part  of  th^  owner  of  the  vicious  animal,  that  it  was  accustomed 
to  do  such  acts.  In  such  a  case  the  owner  is  liable  for  the  tres- 
pass of  his  animal,  and  as  a  part  of  the  act  for  all  the  damage  it 
may  do  to  other  animals  belonging  to  the  owner  of  the  land  so 
trespassed  upon.  Van  Leuven  v.  Ly^e,  1  N.  Y.  (1  Comst.)  615  ; 
Dwnckle  v.  Kocker^  11  Barb.  387 ;  Angus  v.  Radin,  2  South. 
815 ;  BolpJi,  V.  Ferris,  7  Watts  &  Serg.  367. 

Where  a  wire  fence  separates  two  lots,  and  a  mare  is  pastured 
upon  one  side,  and  a  stallion  upon  the  other,  and  the  latter  kicks 
and  bites  the  former  through  such  fence,  without  crossing  it,  the 
act  is  a  trespass  for  which  the  owner  of  the  stallion  is  liable,  with- 
out reference  to  any  question  of  negligence  on  the  part  of  the 
owner  of  the  mare.  Ellis  v.  Loftus  Iron  Co.,  L.  R.,  10  C.  P.  10; 
11  Eng.  Rep.  214 ;  31  L.  T.  (N.  S.)  483. 

An  agistor  of  cattle,  who  takes  a  horse  to  pasture,  and  places 
it  in  a  field  with  a  number  of  heifers,  with  knowledge  that  a  bull 
kept  on  adjacent  land  had  been  found  in  the  field,  and  that  there 
was  no  sufiicient  fence  to  keep  him  out,  is  liable  if  the  horse  is 
gored  and  killed  by  the  bull,  although  he  had  no  knowledge 
that  the  bull  was  of  a  mischievous  disposition.  Smith  v.  Coolc, 
L.  K.,  1  Q.  B.  Div.  79.  The  agistor  is  liable  for  the  breach  of  his 
implied  contract  to  take  reasonable  care  of  the  horse.  lb.  See, 
also,  Phelps  v.  Paris,  30  Vt.  511. 

§  4.  Injuries  by  wild  animals.  Where  animals  are  of  a  tame 
nature,  and  not  generally  accustomed  to  injure  persons  or  animals, 
the  law  does  not  give  damages  for  injuries  of  that  nature,  in  the 
absence  of  proof  that  the  particular  animal  was  accustomed  to  do 
such  acts,  to  the  knowledge  of  the  owner.  See  post,  311,  §5.  But 
an  entirely  different  rule  prevails  in  regard  to  animals  of  a  wild 
and  ferocious  nature,  which  are  naturally  inclined  to  acts  of 
violence  toward  other  animals,  or  to  human  beings ;  and  in  such 
cases  the  law  does  not  require  any  proof  that  the  animal  has 
previously  done  any  mischief  or  injury  to  animals  or  persons, 
for  the  owner  is  presumed  to  know  the  habits  and  disposition 
which  are  universal  among  animals  of  that  species  ;  and,  there- 
fore, the  owner  of  wild  or  ferocious  animals,  such  as  lions,  tigers, 
leopards,  panthers,  bears,  wolves  and  others  of  a  similar  nature, 
is  required  to  keep  them  securely  at  all  hazards ;  and  if  they 
escape  and  do  any  injury  to  other  animals  or  to  persons,  the 


ANIMALS.  311 

owner  will  be  responsible  for  the  injury  done,  without  any  proof 
of  knowledge  of  their  ferocity,  or  that  he  was  negligent  as  to  the 
manner  of  keeping  or  securing  them. 

A  man  who  keeps  a  bear,  which  is  confined  by  a  chain,  which 
has  not  evinced  any  fierceness,  but  had  been  comparatively  tame 
and  docile  in  its  habits,  is,  nevertheless,  liable  for  any  injury 
which  the  animal  may  do.  Besozzi  v.  Harris,  1  F.  &  F.  92.  So 
a  man  who  keeps  a  monkey,  with  a  knowledge  of  its  mischievous 
and  ferocious  nature,  and  that  it  is  accustomed  to  attack  and 
bite  mankind,  and  that  it  is  dangerous  to  allow  it  to  go  at  large, 
is  liable  for  the  injuries  it  may  do  to  persons.  May  v.  Burdett, 
9  Q.  B.  lei ;  16  id.  64  ;  10  Jur.  692 ;  16  L.  J.,  Q.  B.  64.  To  keep 
wild  beasts  is  not,  of  itself,  an  unlawful  act,  even  though  they 
are  by  nature  fierce,  dangerous  and  irreclaimable  ;  but  since  the 
propensity  of  such  animals  to  do  dangerous  mischief  is  well 
known,  and  is  inherent  and  not  to  be  eradicated  by  any  effort  at 
domestication,  nor  restrained  except  by  perfect  confinement  or 
extraordinary  skill  and  watchfulness,  the  owner  or  keeper  of 
such  dangerous  creatures  is  required  to  exercise  such  a  degree 
of  care  in  regard  to  them  as  will  absolutely  prevent  the  occur- 
rence of  an  injury  to  others  through  such  vicious  acts  of  the 
animal  as  he  is  naturally  inclined  to  commit.  Scribner  v.  Kelley, 
38  Barb.  14,  16. 

But  the  owner  of  an  elephant,  which  is  being  driven  along  a 
public  highway  for  a  lawful  purpose,  is  not  liable  for  the  injury 
caused  by  the  frightening  of  a  horse  which  saw  the  elephant, 
and  ran  away  in  consequence  of  its  fright,  unless  it  is  proved 
that  such  an  effect  is  produced  upon  horses  in  general  at  the 
sight  of  an  elephant,  and  that  the  owner  of  the  elephant  knew 
or  had  notice  of  that  fact.  lb.  In  New  York  there  is  a  general 
statute  relating  to  the  conveyance  of  animals  used  in  exhibitions, 
menageries  or  shows.    Laws  1862,  ch.  112  ;  3  K.  S.  545,  Edm.  ed. 

§  5.  Knowledge  by  owner,  of  vicious  habits.  The  owner  of  ani- 
mals or  creatures  which,  as  a  species,  are  harmless  and  domesti- 
cated, and  are  kept  for  convenience  or  use,  is  not  liable  for  inju- 
ries done  by  them,  unless  it  is  shown  that  he  had  notice  of  such 
inclination  on  the  part  of  the  particular  animals  causing  the  in- 
jury to  do  such  acts.    Ante,  308,  §  2. 

It  is  not  always  practicable  to  show  an  actual  formal  notice,  or 
a  positive  knowledge  by  the  owner  of  an  animal  that  it  is  accus- 
tomed to  do  mischief ;  and  such  knowledge  is  not  universally 
required  by  the  law.     Where  the  owner  of  a  domestic  animal 


312  ANIMALS. 

lias  seen  or  heard  of  things  relating  to  the  animal  which  would 
be  sufficient  to  satisfy  a  man  of  ordinary  prudence  and  caution 
that  it  is  ill  disposed  and  likely  to  do  mischief,  it  is  sufficient  to 
require  him  to  secure  the  animal  in  such  manner  as  to  prevent 
injury  by  it.  McCasUll  v.  Elliott,  5  Strobh.  (S.  C.)  196  ;  Wort?i 
V.  Gillmg,  L.  R.,  2  C.  P.  1  ;  Laverone  v.  Ifangianti,  44  Cal.  138 ; 
S.  C,  10  Am.  Rep.  269  ;  Partlow  v.  Haggarty,  35  Ind.  178. 

If  a  person  will  keep  a  mischievous  animal,  with  knowledge 
of  its  propensities,  he  is  bound  to  keep  it  secure  at  his  peril. 
Kelly  V.  IWon,  2  Abb.  Ct.  App.  495  ;  3  Keyes,  263. 

In  an  action  against  the  owner  of  a  dog,  for  causing  a  team  to 
run  away  in  consequence  of  an  attack  by  the  dog  in  the  street, 
knowledge  by  the  owner  of  the  dog  must  be  alleged  and  proved, 
and  it  ought  to  appear  clearly  that  it  was  the  attack  of  the 
dog  and  not  any  vicious  habit  of  the  horse  that  caused  the  run- 
away.    Wormley  v.  Or  egg,  ^^  111.  251. 

It  has  been  held  that  in  an  action  to  recover  for  an  injury 
caused  to  a  person  by  the  bite  of  a  dog,  it  must  be  shown  that 
the  owner  of  the  dog  knew  that  he  was  in  the  habit  of  biting 
mankind,  not  merely  that  he  bit  other  animals,  or  that  the  action 
cannot  be  maintained.  Keiglitlinger  v.  Egan,  65  111.  235.  But 
in. the  same  State  it  has  been  held  that  the  owner  of  a  mischievous 
and  ferocious  dog  who  permits  it  to  go  at  large,  with  a  knowledge 
that  it  has  killed  one  kind  of  animals,  will  be  liable  if  it  destroys 
other  animals  of  a  different  species.  Pickering  v.  Orange,  2  lU. 
(1  Scam.)  338.  And  in  an  action  for  an  injury  done  to  a  horse  by  a 
bull,  it  is  competent  to  show  that  the  owner  of  the  bull  knew 
that  the  bull  had  previously  attacked  a  man.  Cockerliam  v. 
Nixon,  11  Ired.  (N.  C.)  269.  So,  where  the  owner  of  a  bull  knows 
that  it  is  viciously  disposed  toward  other  animals,  he  will  be 
liable  for  injuries  inflicted  by  it  upon  a  person.  EarTiartY. 
YoungUood,  27  Penn.  St.  337. 

A  person  who  keeps  an  animal  after  he  has  notice  that  this 
particular  animal  is  of  a  vicious  disposition,  is  required  to  keep 
it  securely,  although  it  is  not  of  a  savage  or  ferocious  species, 
and  he  will  be  liable  for  such  injury  as  it  may  do,  without  refer- 
ence to  any  specific  negligence  as  to  its  custody.  Popplewell  v. 
Pierce,  10  Cush.  509  ;  Stumps  v.  Kelly,  22  111.  140  ;  Kittredge  v. 
EllioU,  16  N.  H.  77  ;  Woolf  v.  Chalker,  3  Connecticut,  121 ; 
Koney  v.  Ward,  2  Daly,  295 ;  36  How.  255. 

"Where  a  dog  has  a  vicious  habit  of  attacking  and  biting  other 
dogs,  without  being  incited  to  do  so,  to  the  knowledge  of  its 


ANIMALS.  313 

owner,  and  the  dog  is  permitted  to  run  at  large,  and  he  attacks 
and  kills  the  dog  of  another  person  which  is  lawfully  in  the  place 
where  he  is  killed,  the  owner  of  such  vicious  dog  is  liable  for  the 
damages.     Wheeler  v.  Brant,  23  Barb.  324. 

Vicious  dogs  are  a  nuisance,  and  their  owners  must  either  kill 
them  or  confine  them,  as  soon  as  they  have  notice  of  their  dan- 
gerous habits,  or  answer  in  damages  for  the  injuries  inflicted  by 
them.  lb.  Where  a  dog  has  bitten  persons,  to  the  knowledge 
of  its  owner,  who  afterward  suffers  him  to  be  at  large,  he  will  be 
liable  for  the  injuries  caused  by  the  dog  in  biting  another  person 
afterward.    BucJcley  v.  Leonard,  4  Denio,  500. 

It  is  not  necessary,  in  order  to  sustain  an  action  against  a  per- 
son for  negligently  keeping  a  ferocious  dog,  to  show  that  the 
animal  had  actually  bitten  another  person  before  it  bit  the  plain- 
tiff; it  is  enough  to  show  that  it  has,  to. the  knowledge  of  its 
owner,  evinced  a  savage  disposition  by  attempting  to  bite.  Worth 
V.  Gllling,  L.  R.,  2  C.  P.  1 ;  McCaskill  v.  Elliot,  5  Strobh.  L. 
196. 

Where  the  owner  of  a  bull  drives  it  along  a  public  highway, 
where  it  injures  a  person  who  wears  a  red  handkerchief  around 
h'is  neck,  and  it  is  shown  that  the  owner  said  that  he  knew  that  a 
bull  or  tJie  bull  would  run  at  any  thing  red,  it  will  be  sufficient 
evidence  to  give  the  case  to  the  jury  on  the  question  of  knowl- 
edge.    Hudson  v.  Roberts,  6  Exch.  697. 

An  action  lies  against  the  owner  of  a  dog,  who,  knowing  the 
animal  to  have  a  j)ropensity  for  chasing  and  destroying  game, 
permits  it  to  be  at  large,  and  the  dog  in  consequence  "  breaks 
and  enters  "  the  plaintiff '  s  wood,  and  chases  and  destroys  young 
pheasants  which  are  being  reared  there  under  domestic  hens. 
Read  v.  Edwards,  17  C.  B.  (N.  S.)  245. 

A  man  who  owns  a  horse  which  is  accustomed  to  bite  persons, 
to  the  knowledge  of  the  owner,  who  usually  keeps  him  muzzled, 
is  liable  for  injuries  committed  by  the  animal  by  biting  a  person 
who  was  passing  by  it  upon  a  sidewalk  in  a  public  street,  even 
though  he  knew  the  horse  would  bite,  and  was  usually  muzzled, 
but  did  not  notice  that  it  was  not  then  muzzled.  Koney  v.  Ward, 
2  Daly,  295  ;  36  How.  255.  So  one  who  negligently  permits  his 
horse -to  run  loose  and  unattended  upon  the  sidewalks  of  a  pop- 
ulous street  in  a. city,  will  be  liable  for  any  injury  it  may  do  by 
kicking  a  person  who  is  lawfully  passing  along  a  sidewalk  of 
such  street ;  and  it  is  not  necessary  to  show  viciousness  in  the 
horse  in  committing  the  injury,  except  in  cases  where,  but  for 

Vol.  I.  —  40 


314  ANIMALS. 

the  vice  of  the  animal,  the  owner  would  be  free  from  fault. 
Dickson  v.  McCoy,  39  N.  Y.  (12  Tiff.)  400  ;  7  Trans.  App.  Ill ; 
Goodman  v.  Gay,  15  Penn.  St.  188.  And  see  Barnes  v.  Clia^in^ 
4  Allen,  444. 

The  general  rule,  that  the  owner  of  a  domestic  animal  is  not 
liable  for  injuries  done  by  it  to  other  animals,  or  to  persons, 
seems  to  be  generally  recognized  and  acted  upon. 

In  some  cases  it  is  held  that  a  single  act  of  injury  done  by  the 
animal  to  the  knowledge  of  the  owner  is  sufficient  to  render  him 
liable  for  subsequent  similar  injuries  done  by  the  animal.  8mUh 
V.  Pelah,  2  Strange,  1264  ;  Arnold  v.  Norton,  25  Conn.  92  ;  Kit- 
tredge  v.  Blliott,  16  N.  H.  77. 

In  other  cases  two  or  more  instances  were  shown.  BucTdey  v. 
Leonard,  4  Denio,  500 ;  Wheeler  v.  Brant,  23  Barb.  324. 

But  there  are  cases  in  which  the  law  ought  not  to  require  proof 
that  a  particular  animal  has  done  a  previous  similar  injury  be- 
fore its  owner  is  liable  for  its  acts. 

It  has  been  seen,  ante,  310,  that  the  owner  of  wild  and  feroci- 
ous animals  is  liable  for  the  injuries  done  by  them  to  other  ani- 
mals or  to  persons,  without  proof  of  knowledge  that  they  had 
committed  previous  injuries.  And  the  same  principle  ought 
to  govern  where  a  man  keeps  an  animal  which  he  knows  to 
be  of  a  savage  and  ferocious  nature,  and  liable  at  any  time  to 
do  some  injury  to  other  animals  or  to  persons.  In  such  cases, 
the  owner  ought  to  be  regarded  as  having  sufficient  knowledge 
or  notice  to  require  him  to  prevent  the  animal  from  doing  mis- 
chief. And  it  has  been  held  that  a  man  who  keeps  a  large  and 
fierce-looking  dog,  which  is  in  the  habit  of  running  out  to  the 
highway  and  furiously  barking  at  persons  passing  along,  and 
of  sometimes  attacking  persons  or  horses  passing  in  the  high- 
way, will  be  liable  if  the  dog  bites  a  person,  although  it  is  not 
shown  that  it  had  previously  bitten  any  person  ;  and  the  court 
said:  "  That  a  dog  has  once  bitten  a  man,  is  a  circumstance 
from  which  the  probability  of  its  biting  another  may  be  inferred; 
but  the  same  inference  may  be  drawn  with  equal  confidence  from 
other  indications  of  the  dog's  disposition.  Indeed,  attempts  be- 
fore made  by  a  dog  that  had  never  succeeded  in  actually  biting, 
may  give  more  full  assurance  of  danger  to  be  apprehended  from 
it,  than  could  exist  as  to  another  dog,  that  under  some  peculiar 
circumstances  had  used  its  teeth  upon  man.  To  require  that  a 
plaintiff,  before  he  can  have  redress  for  being  bitten,  should 
show  that  some  other  sufferer  had  previously  endured  harm  from 


ANIMALS.  315. 

the  same  dog,  would  be  always  to  leave  tlie  first  wrong  unre- 
dressed, and  to  lose  sight  of  the  thing  to  be  proved,  in  attention 
to  one  of  the  means  of  proof.  If  nothing  short  of  a  dog's  once 
having  bitten  can  show  its  dangerous  nature,  even  the  owner  of  a 
dog  known  to  have  been  bit  by  a  rabid  animal  may  not  be  an- 
swerable, unless  on  some  previous  occasion  the  dog  has  inflicted 
the  dreadful  injury,  which  he  was  bound  to  have  apprehended 
and  prevented."  McCasMll  v.  Elliott,  5  Strobh.  (S.  C.)  197,  198. 
In  Worth Y.GilUng,  L.  R.,  2  C.  P.  4,  the  court  said:  "Al- 
though there  was  no  evidence  that  the  dog  had  ever  before  bit- 
ten any  one,  it  was  proved  that  he  uniformly  made  every  ejQTort 
in  his  power  to  get  at  any  stranger  who  passed  by,  and  was  only 
restrained  by  the  chain.  There  was  abundant  evidence  to  show 
that  the  defendants  were  aware  of  the  animal's  ferocity,  and,  if 
so,  they  are  clearly  responsible  for  the  damage  the  plaintiff  has 
sustained.  *  i«-  *  There  was  evidence  that  the  dog 
was  in  the  habit  of  jumping  at  every  one  who  passed  his  ken- 
nel, endeavoring  to  bite,  and  that  the  defendants  knew  it.  It  is 
true  that  he  did  not  appear  to  have  succeeded  in  biting  any  per- 
son until  he  unfortunately  caught  the  plaintiff.  The  defendants 
admitted  that  the  dog  was  purchased  for  the  protection  of  their 
premises.  Unless  of  a  fierce  nature,  he  would  hardly  have  been 
useful  for  that  purpose."  See,  also,  Laverone  v.  Mangianti,  41 
Cal.  138 ;  S.  C,  10  Am.  Rep.  269  ;  Jackson  v.  BmitJtson,  15  M.  & 
W.  561 ;  Oakes  v.  8paulding,  40  Vt.  347 ;  Brown  v.  Carxjenter, 
26  id.  638. 

Although,  in  an  action  for  injuries  resulting  from  the  bite  of  a 
dog,  notice  to  the  wife  of  the  savage  nature  of  the  dog  will  be 
sufficient  evidence  of  the  scienter  to  fix  the  husband ;  yet  the 
converse  does  not  hold,  and  a  notice  to  the  husband  will  not, 
taken  alone,  be  sufficient  proof  of  the  scienter  to  render  the  wife 
liable  after  her  husband's  death.  Miller  y.  Kirnhr ay,  IQ  L.  T. 
(N.  S.)  360.  But  a  husband  will  be  held  to  have  sufficient  knowl- 
edge of  the  propensity  of  his  dog  to  bite,  where  it  is  shown  that 
the  wife  of  the  defendant,  a  milkman,  occasionally  attended  to 
his  business,  which  was  carried  on  upon  premises  where  he  kept 
the  dog,  and  that  a  person  had  gone  there  and  made  a  formal 
complaint  to  the  wife,  for  the  purpose  of  having  it  communica- 
ted to  the  husband  that  the  dog  had  bitten  the  informant's 
nephew.  Gladmari  v.  Johnson,  36  L.  J.  (C.  P.)  153 ;  15  W.  R. 
313  ;  15  L.  T.  (N.  S.)  476. 


316  ANIMALS. 

§  6.  Agent's  knowledge  of  yiciousness.  Knowledge  by  the  agent 
is  generally  regarded  as  knowledge  by  the  principal.  Ante^  231, 
232.  And,  therefore,  if  the  owner  of  a  dog  appoints  a  servant 
to  keep  it,  the  servant's  knowledge  of  the  dog's  ferocity  is  the 
knowledge  of  his  master.  Baldwin  v.  Casella,  L.  R.,  7  Exch. 
325 ;  S.  C,  3  Eng.  Rep.  434.  So  the  owner  of  a  dog  was  held  to 
have  sufficient  knowledge  of  the  ferocity  of  his  dog,  where  it  was 
shown  that  before  it  bit  the  plaintiff,  two  persons  who  had  been 
attacked  by  it  on  previous  occasions,  proved  that  they  had  gone 
to  the  defendant's  public  house  and  made  complaint  to  two  persons 
who  were  behind  the  bar  serving  customers,  and  that  one  of 
them  also  complained  to  the  barmaid ;  but  there  was  no  evidence 
that  these  complaints  were  communicated  to  the  defendant,  nor 
that  the  two  men  spoken  to  had  the  general  management  of  the 
defendant' s  business,  or  had  the  care  of  the  dog.  Applebee  v. 
Percy,  L.  R.,  9  C.  P.  647  ;  22  W.  R.  704 ;  43  L.  J.  (C.  P.)  365  ;  30 
L.  T.  (N.  S.)  785. 

§  7.  Liability  of  possessor  of  animal.  It  is  not  merely  the  own- 
ers of  dogs  or  other  animals  who  are  liable  for  their  acts ;  for  in 
an  action  against  a  person  for  keeping  a  dog  accustomed  to  bite 
mankind,  it  is  not  essential  that  the  dog  should  be  his  ;  for  if  he 
harbors  the  dog,  or  allows  it  to  be  at  his  premises,  or  to  resort  to 
them,  he  will  be  as  liable  as  though  owner  of  the  dog.  McKone 
V.  Wood,  5  Carr.  &  P.  1 ;  Frammell  v.  Little,  16  Ind.  251 ;  Wil- 
kinson V.  Parrott,  32  Cal.  102  ;  Marsh  v.  Jones,  21  Vt.  378. 

But  a  person  is  not  liable  for  the  acts  of  a  dog  which  he  strives 
to  drive  away  from  his  premises.  And  where  it  appeared  that  the 
plaintiff  was  bitten  by  a  stray  dog  at  a  railway  station  while  she 
was  waiting  for  a  train  ;  and  it  was  further  shown  that  at  9  p.  m. 
the  dog  flew  at  and  tore  the  dress  of  another  female  on  the  plat- 
form ;  that  at  10:30  p.  m.  he  attacked  a  cat  in  the  signal-box  near 
'the  station,  when  the  porter  then  kicked  him  out,  and  saw  no 
more  of  him  ;  and  that  he  made  his  appearance  again  at  10:40, 
on  the  platform,  where  he  bit  the  plaintiff;  this  was  held  not  suffi- 
cient to  show  that  the  company  were  guilty  of  negligence  in  not 
keeping  the  station  reasonably  safe  for  passengers.  Smitli  v. 
Great  Eastern  Railway  Co.,  L.  R.,  2  C.  P.  4 ;  36  L.  J.  (C.  P.)  22  ; 
15  W.  R.  131 ;  15  L.  T.  (N.  S.)  246. 

§  8.  Injuries  by  trespassing  animals.  This  subject  has  already 
been  noticed,  ante,  307,  §  1  ;  ante,  309,  §  3.  And  while  the 
owner  is  liable  for  the  trespasses  of  his  cattle,  he  is  not  liable  for 
the  injuries  done  by  the  cattle  of  another  person,  although  such 


ANIMALS.  317 

cattle  entered  through  the  breach  of  fence  made  by  the  cattle  of 
the  former,  unless  the  acts  occurred  in  a  manner  to  be  under  his 
control.     Durham  v.  Goodwin^  54  111.  469. 

But  if  the  beast  (a  mule)  of  the  defendant  escapes  from  his 
field  through  an  insufficient  fence  into  the  field  of  A,  thence  into 
the  field  of  B,  and  thence  into  the  field  of  the  plaintiff,  where  it 
injures  the  plaintiff's  horse,  the  defendant  will  be  liable  for  the 
injuries,  although,  as  between  him  and  A,  thfe  latter  was  bound 
to  keep  the  fence  between  their  fields  in  repair,  although  the 
fence  between  the  plaintiff's  field  and  B's  was  insufiicient,  and 
although  the  defendant  did  not  know  that  the  mule  was  vicious. 
Lyons  v.  Merrick^  105  Mass.  71.  See  Stafford  v.  Ingersol,  3 
Hill,  38. 

But,  where  two  persons  own  adjoining  lands,  and  there  is  a 
division  fence  erected  between  them,  and  the  cattle  of  one  of 
them  enters  upon  the  lands  of  the  other,  who  has  neglected  to 
keep  his  portion  of  the  division  fence  in  repair,  he  cannot  main- 
tain  an  action  for  the  entry  of  such  cattle  through  the  defective 
fence.     Cowles  v.  Balzer,  47  Barb.  562. 

And,  where  M.,  upon  whose  land  there  is  an  unguarded 
"slough-well,"  and  C,  an  adjoining  land-owner,  mutually 
agree,  for  the  purpose  of  saving  the  expense  of  fence  building, 
that  the  stock  of  each  might,  in  the  fall  of  the  year,  pasture 
upon  the  lands  of  tlie  other,  but  with  no  stipulation  on  the  part  of 
either  to  protect  the  cattle  of  the  other  while  pasturing  on  his 
lands,  this  will  not  render  M.  liable  for  the  loss  of  C.'s  horse  in 
the  "slough-well.'*  McGill  v.  Compton,  66  111.  327.  So  the 
owner  of  uninclosed  woodland  is  not  liable  for  an  injury  sus- 
tained by  trespassing  cattle  which  fall  into  a  hole  dug  by  the 
owner  in  such  woodland,  which  he  leaves  uninclosed.  Knight 
V.  Abert,  6  Penn.  St.  472 ;  and  see  Bush  v.  Brainard,  1  Cow. 
78;  ante,  305,  §  4;  Mentges  y.  N.  Y.  &  Earlerro  R.  R.  Co.,  1 
Hilt.  425. 

§  9.  Communicating  diseases.  The  right  of  a  person  to  keep 
diseased  animals  upon  his  own  premises  has  been  noticed,  ante, 
306,  §  7.  But  the  law  does  not  look  with  favor  upon  the  acts  of 
those  who  intentionally,  or  by  negligence,  cause  the  spread  of 
contagious  or  infectious  diseases  among  animals.  And  a  person 
who  sells  an  animal  with  a  warranty  that  it  is  free  from  foot  or 
mouth  disease,  when  it  has  such  a  disease,  which  is  communi- 
cated to  other  animals  by  putting  it  in  the  same  herd  with  them, 
will  be  liable  for  the  loss  of  such  animal  if  it  dies  of  the  disease, 


318  ANIMALS. 

as  well  as'for  the  loss  of  all  of  the  other  cattle  to  which  it  com 
municated  the  disease.  Smith  v.  Green,  L.  R.,  1  C.  P.  Div.  92 ; 
MiilleU  V.  Mason,  L.  R.,  1  C.  P.  559. 

When  the  owner  of  an  animal  takes  it  to  a  public  market  for 
sale,  this  furnishes  evidence  of  a  representation  on  his  part  that 
the  animal  is  not,  so  far  as  he  knows,  suffering  from  any  infec- 
tious disease.  Bedger  v.  Mcolls,  28  L.  T.  (N.  S.)  441,  Q.  B.  One 
who  knowingly  delivers  a  glandered  horse  to  another  person 
without  informing  him  that  the  horse  is  glandered,  and  the  latter, 
not  knowing  of  such  disease,  puts  it  with  another  horse  of  his, 
which  takes  the  disease  and  dies  of  it,  is  liable  to  an  action  with- 
out any  allegation  of  fraud  or  warranty.  Penton  v.  Murdoch, 
22  L.  T.  (N.  S.)  371 ;  18  W.  R.  382. 

So,  where  a  flock  of  sheep  is  sold  by  an  agent  authorized  to 
sell  them,  which  he  does,  with  a  knowledge  that  the  sheep  are 
diseased  with  a  contagious  disease,  but  does  not  communicate 
that  fact  to  the  purchaser,  who  mixes  the  sheep  with  a  flock  be- 
fore owned  by  him,  in  consequence  of  which  some  of  the  sheep 
of  both  flocks  die,  the  principal  will  be  liable  for  the  loss  of  the 
sheep,  although  he  had  no  notice  of  the  agent's  fraud.  Jeffrey  v. 
Bigelow,  13  Wend.  618. 

§  10.  Injuries  by  animals  of  different  owners.  Where  several 
animals  belonging  to  different  owners  join  in  the  commission  ot 
mischief,  the  several  owners  cannot,  at  common  law,  be  joined 
in  a  single  action  for  the  mischief  done,  since  each  person  is  not 
jointly  liable  for  the  acts  of  all  the  animals,  but  merely  for  the 
acts  of  the  animal  owned  by  him.  Carroll  v.  Weiler,  4  Y.  IST.  S.  C. 
(T.  &  C.)  131 ;  S.  C,  1  Hun,  605 ;  Van  Bteenburgh  v.  ToUas, 
Yl  Wend.  562  ;  Auclimiity  v.  Ham,  1  Denio,  495  ;  Partenheimer 
V.  Van  Order,  20  Barb.  479 ;  Russell  v.  Tomlinson,  2  Conn.  206 ; 
Adams  v.  Hall,  2  Vt.  9  ;  Denny  v.  Correll,  9  Ind.  72.  The  ques- 
tion what  portion  of  the  damage  was  done  by  each  animal  is  one 
of  fact ;  and  where  cows  trespass  and  do  damage,  and  in  the 
absence  of  all  proof  as  to  the  amount  of  damage  doi^e  by  each 
cow,  the  law  will  infer  that  each  did  an  equal  amount  of  the 
damage.  Partenheimer  v.  Van  Order,  20  Barb.  479  ;  Budding- 
ton  v.  Shearer,  20  Pick.  477.  If  the  animals  are  of  unequal  size 
and  strength,  and  have  different  capacities  for  mischief,  this  may 
bg  taken  into  the  account  in  estimating  the  liabilities  of  the 
owners.  Where  two  dogs  of  unequal  size  are  owned  by  differ- 
ent persons,  and  the  dogs  together  kill  a  number  of  sheep,  the 
jury  may  find  that  the  larger  dog  did  more  mischief  or  damage 


ANIMALS.  319 

than  the  smaller  one,  and  apportion  the  damages  accordingly. 
Wilbur  V.  Hubhard,  35  Barb.  303.  Where  growing  crops  are 
destroyed  by  repeated  trespasses  of  cattle  belonging  to  two  dif- 
ferent owners,  and  it  is  impossible  to  distinguish  between  the 
trespass  of  one  lot  of  cattle  and  that  of  the  other,  or  to  deter 
mine  the  actual  amount  of  damage  done  by  either  separately, 
the  damages  may  be  apportioned  by  charging  each  owner  accord- 
ing to  the  number  of  cattle  owned  by  him  and  thus  doing  dam- 
age.    Powers  V.  Kindt^  13  Kans.  74. 

Joint-owners  of  a  vicious  animal  are  both  equally  bound  to 
restrain  him,  and  if  the  animal  is  not  restrained,  and  one  of  the 
joint-owners  is  sued  and  compelled  to  pay  for  injuries  done  by 
such  animal,  no  action  lies  by  him  against  the  other  joint-owner 
for  contribution,  since  both  parties  were  wrong-doers,  and  in 
that  case  the  law  will  not  enforce  contribution.  Spaulding  v. 
OaJces,  42  Vt.  343. 

§  11.  Liability  by  statute.  The  liabilities  of  owners  of  domestic 
animals  for  injuries  done  by  them  in  public  streets  or  highways 
has  been  noticed,  ante,  313,  314.  In  New  York  it  is  not  lawful 
for  cattle,  horses,  sheep,  swine  or  goats  to  run  at  large  in  public 
streets,  parks  or  highways.  Laws  1869,  ch.  424,  §  1.  And  if  a 
horse  is  permitted  to  run  at  large  in  the  highway  the  owner  will 
be  liable  to  any  person  who  is  injured  by  it  in  such  highway, 
without  any  proof  of  knowledge  by  the  owner  that  the  animal 
was  accustomed  to  do  such  acts.  Bowyer  v.  Burley,  3  N.  Y.  S,  C. 
(T.  &  C.)  362. 

"  The  owner  or  possessor  of  any  dog  that  shall  kill  or  wound 
any  sheep  or  lamb  shall  be  liable  for  the  value  of  such  sheep  or 
lamb  to  the  owner  thereof,  without  proving  notice  to  the  owner 
or  possessor  of  such  dog,  or  knowledge  by  him  that  his  dog  was 
mischievous  or  disposed  to  kill  skeep."  1  R.  S.  656,  §  9,  Edm.  ed.; 
Fisli  V.  SJcut,  21  Barb.  333  ;  Osincup  v.  Nlcliols,  49  id.  145. 

Where  the  injury  to  sheep  or  lambs  is  other  than  that  specified 
in  the  statute  it  must  be  shown  that  the  owner  of  the  dog  knew  that 
it  was  accustomed  to  do  the  kind  of  mischief  complained  of.  And 
while  the  owner  of  a  dog  is  liable  if  it  kills  or  wounds  a  sheep  or 
lamb,  without  proof  of  knowledge,  the  rule  is  otherwise  where 
the  injury  alleged  is  that  of  chasing  and  worrying  sheep  ;  and  in 
such  case  a  scienter  must  be  shown  to  render  the  owner  of  the 
dog  liable.    AucTimuty  v.  Ham,  1  Denio,  495; 

There  are  statutes  in  several  of  the  States  relating  to  injuries 
done  by  dogs  to  sheep  and  other  animals,  and  the  statutes  and 


320  ANIMALS. 

authorities  of  such  States  must  be  consulted  for  the  laws  of  such 
States. 

§  12.  Contrihutory  negligence.  In  a  subsequent  portion  of 
this  work  this  subject  will  be  fully  considered,  and,  therefore,  a 
mere  reference  to  that  title  will  be  sufficient  in  this  place.  And 
see  ante^  36, 146,  and  ante,  309. 


ARTICLE  IV. 

RIGHTS   OF   THIRD  PERSON'S. 

Section  1.  To  kill  dangerous  animals.  Any  person  may  law- 
fully kill  a  ferocious  dog  which  is  accustomed  to  attack  and  bite 
mankind,  where  it  is  found  at  large  on  public  highways  or 
streets,  without  a  muzzle  or  other  means  of  preventing  it  from 
injuring  persons.  Putnam  v.  Payne,  13  Johns.  312  ;  Maxwell 
V.  Palmerton,  21  Wend.  407  ;  Brown  v.  Carpenter,  26  Vt.  638  ; 
WooI/y.  Chalker,  31  Conn.  121,  130. 

But,  where  one  keeps  a  dog  for  the  protection  of  his  family, 
and  the  dog  is  duly  licensed,  and  collared,  according  to  the  stat- 
ute, and  so  confined  as  not  to  endanger  persons  properly  upon 
the  owner's  premises,  it  cannot  lawfully  be  killed  by  one  who 
enters  upon  the  premises,  even  though  it  was  a  dangerous  animal 
and  accustomed  to  bite  those  who  came  near  it.  Uhlein  v.  Cro- 
mack,  109  Mass.  273. 

Nor  can  a  person  lawfully  enter  a  dwelling-house  for  the  pur- 
pose of  killing  a  dog  not  registered  and  collared  according  to  the 
statute.  Bishop  v.  Faliay,  15  Gray,  61  ;  Kerr  v.  Searnr,  11 
Allen,  .151. 

§  2.  Abating  a  nuisance.  An  inhabitant  of  a  dwelling-house 
may  lawfully  kill  a  dog  which  is  in  the  habit  of  haunting  his 
house  and  barking  and  howling  by  day  and  by  night,  so  as  to 
disturb  the  peace  and  quiet  of  his  family,  if  the  dog  cannot  other- 
wise be  prevented  from  annoying  him.  Brill  v.  Flagler,  23 
Wend.  354.  A  wanton  destruction  of  the  animal  is  not  justi- 
fiable, lb. 

§  3.  To  protect  his  own  animals.  Every  owner  of  animals  has 
a  right  to  protect  them  from  being  unlawfully  attacked  or  de- 
stroyed by  other  animals  ;  and  if  he  cannot  otherwise  protect  his 
own  than  by  killing  the  attacking  animal,  he  may  kill  it.  When 
a  dog  goes  upon  the  land  of  a  person  not  its  owner,  and  there 
.  chases  fowls,  and  is  in  the  act  of  destroying  one,  the  owner  of 


ANIMi^LS.  321 

the  fowl  may  lawfully  kill  the  dog.      Leonard  v.  Wilkins,  9 
Johns.  233 ;  Hincldey  v.  Emerson,  4  Cow.  351. 

A  dog  which  is  in  the  act  of  chasing  and  worrying  sheep  may 
be  lawfully  killed  by  the  owner  of  the  sheep.  Brown  v.  Hol)ur- 
ger,  52  Barb.  15. 

If  the  owner  of  an  ass  knows  that  he  is  a  dangerous  animal, 
and  is  in  the  habit  of  pursuing  and  injuring  stock,  and  he  per- 
mits it  to  run  at  large,  when  he  attacks  a  cow,  throws  her  down, 
and  is  in  the  act  of  stamping  on  her,  the  owner  of  the  cow  will 
be  justified  in  killing  the  ass  if  he  believes  that  to  be  necessary 
to  save  his  cow.     Williams  v.  Dixon,  65  IST.  C.  416. 

If  a  statute  provides  that  no  person  shall,  in  any  way,  destroy 
any  mink  between  specified  dates,  under  a  prescribed  penalty  ; 
and  the  State  constitution  declares  that  all  men  have  certain 
natural,  essential  and  inherent  rights,  among  which  is  the  right 
of  "protecting  property,"  and  an  action  is  brought  against  a 
person  for  killing  minks  contrary  to  the  statute,  it  will  be  a  good 
defense  to  show  that  the  defendant  shot  the  minks  upon  his  own 
land  while  they  were  chasing  his  geese,  and  without  showing 
that  the  geese  were  in  imminent  danger  and  could  not  otherwise 
have  been  protected.  Aldrich  v.  WrigJit,  53  N.  H.  398  ;  S.  C,  16 
Am.  Rep.  339,  where  the  cases  are  fully  and  ably  reviewed. 

§  4.  To  protect  his  property  from  trespass.  It  has  been  seen 
that  domestic  animals  cannot  lawfully  be  killed  for  a  mere  tres- 
pass upon  the  lands  of  another.  Ante,  304,  §  4.  If  animals  are 
trespassing,  as  by  going  upon  a  railroad  track,  and  are  there 
killed  by  a  passing  train,  no  action  lies.  Ante,  303,  §  4.  So, 
too,  there  are  cases  in  which  trespassing  animals  may  be  lawfully 
killed.  And  where  the  case  showed  that  a  trespassing  dog  had 
taken  fish  from  the  wall  of  the  owner's  house,  where  they  had 
been  hung  up  to  dry,  and  a  few  hours  afterward  the  dog  was 
found  trespassing  on  the  same  premises,  it  was  held  that  the 
owner  of  the  premises  had  a  right  to  protect  his  property  b}'- 
killing  the  dog  if  that  was  necessary.  King  v.  Kline,  6  Penn. 
St.  318.    And  see  Bradford  v.  IIcKibhon,  4  Bush  (Ky.),  545. 

A  dog  may  lawfully  drive  trespassing  stock  off  of  his  master's 
premises ;  and  if  he  does  so,  the  owner  of  the  stock  will  be  lia- 
ble to  an  action  for  killing  the  dog,  unless  it  is  shown  that  he  is 
a  nuisance  in  the  neighborhood.  Spray  v.  Ammerman,  66  111. 
309. 

If  domestic  animals  trespass  upon  the  lands  of  a  person  other 
than  the  owner,  he  may  lawfully  turn  them  off  of  his  land  by 

Vol.  L— 41 


322  ANIMALS. 

driving  them  into  a  public  highway  and  leaving  them  there. 
Humphrey  v.  Douglass^  10  Yt.  71.  So  if  horses  escape  from 
their  owner's  inclosure,  by  reason  of  his  neglect  to  keep  up  his 
portion  of  a  division  fence,  the  horses  may  be  turned  into  the 
highway  by  the  person  upon  whose  lands  they  are  trespassing. 
Hum/plirey  v.  Douglass^  11  Vt.  22.  But  if  horses  or  cattle  come 
upon  the  lands  of  a  person  in  consequence  of  his  neglect  to  keep 
up  his  part  of  a  division  fence,  he  cannot  turn  them  into  the 
highway  if  they  belong  to  the  adjoining  land-owner,  and  went 
through  such  portion  of  the  defective  fence.  Knour  v.  Wagoner^ 
16  Ind.  414  ;  ClarTc  v.  Adams,  18  Vt.  425.  In  such  cases  he 
ought  to  drive  them  back  upon  their  owner's  land.  lb. 

One  may  drive  trespassing  cattle  off  of  his  land  by  using  a  dog 
for  that  purpose,  if  the  dog  is  a  proper  one  to  use  for  that  pur- 
pose, and  care  is  used  to  prevent  excessive  worrying  or  injury. 
Dams  V.  Campbell,  23  Vt.  236 ;  ClarJce  v.  Adams,  18  id.  425 ; 
Wood  V.  La  Rue,  9  Mich.  158. 

If  a  person  chases  a  horse  out  of  his  field  with  a  very  large  and 
fierce  dog,  he  will  be  liable  for  the  injuries  thus  done.  Amick 
V.  QHara,  6  Blackf.  258.    See  ante,  305,  §  5. 


ANNUITIES.  323 

CHAPTER  XI. 

ANNUITIES. 
ARTICLE  I. 

GENEEAL   EULES  RELATING  TO   ANNUITIES. 

Section  1.  Nature  of  an  annuity.  Lord  Coke  defines  an  an- 
nuity to  be  a  yearly  sum  stipulated  to  be  paid  to  another,  in  fee, 
or  for  life,  or  years,  and  chargeable  only  on  the  person  of  the 
grantor.  Co.  Litt.  144,  h.  It  has  also  been  defined  as  a  sum  of 
money  payable  by  contract  at  fixed  regularly  recurring  epochs, 
which  are  usually  determined  by  reference  to  the  civil  year, 
although  the  intervals  between  them  need  not  be  in  every  case 
years  ;  they  may  either  be  greater  or  less  than  a  year.  It  is 
chargeable  only  upon  the  person  of  the  grantor.  2  Broom  &  Had. 
Com.  54  (Wait's  ed.,  vol.  1,  459) ;  and  ^QQSJiufeldtY.  Abernethy, 

12  N.  y.  Leg.  Obs.  173,  182  ;  S.  C,  2  Duer,  533  ;  v. , 

6  Mart.  (La.)  312. 

An  annuity  is  sometimes  confounded  with  a  rent-charge,  from 
which  it  differs,  however,  in  being  chargeable  only  upon  the 
perso7i  of  the  grantor,  while  a  rent-charge  is  something  which 
always  issues  out  of  specific  land.  Bac.  Abr.,  Annuity,  A;  Hor- 
ton  V.  Cook,  10  Watts  (Penn.),  127. 

An  annuity  in  fee  is  personal  estate  sub  modo.  It  has  none  of 
the  incidents  and  characteristics  of  real  estate,  except  that  of 
descending  to  the  heir,  and  not  forming  assets  in  the  hands  of  the 
executor.  The  husband  is  not  entitled  to  his  curtesy,  nor  the 
wife  to  her  dower,  in  an  annuity.  It  cannot  be  conveyed  by 
way  of  use,  and  it  is  not  within  the  statute  of  frauds,  and  may 
be  bequeathed  and  assigned  as  personal  estate.  3  Kent's  Com. 
460,  n. ;  Aubin  v.  Daly,  4  Barn.  &  Aid.  69  ;  and  see  2  Broom  & 
Had.  Com.  54,  55  (Wait's  ed.,  vol.  1,  459). 

There  is  a  distinction  between  an  income  and  an  annuity.  The 
former  embraces  only  the  net  profits  after  deducting  all  necessary 
expenses  and  charges ;  the  latter  is  a  fixed  amount  directed  to 
be  paid  absolutely  and  without  contingency.  Booth  v.  Am- 
merman,  4  Bradf.  (N.  Y.)  129,  134;  Ex  parte  M  Comb,  id. 
151, 152. 


324  ANNUITIES. 

Though  not  belonging  to  the  class  of  things  real,  an  annuity 
may,  in  a  limited  sense,  be  described  as  a  hereditament,  because 
the  law  permits  it  to  be  limited  to  a  man  and  his  heirs,  or  to  a 
man  and  the  heirs  of  his  body,  so  that  it  in  that  case  descends, 
upon  death  and  intestacy,  to  the  person  who  would  succeed  to 
land  limited  in  the  same  manner,  and  it  is  forfeitable  for  treason ; 
and,  moreover,  like  incorporeal  hereditaments  strictly  so-called, 
it  can  only  be  granted  or  transferred  by  deed,  though  the  con- 
tract to  grant  an  annuity  will  be  binding  and  enforced  against 
the  estate  of  the  proposed  grantor.  See  2  Broom  &  Had.  Com. 
55  (Wait's  ed.,  vol.  1,  459) ;  Meld  v.  Smith,  14  Ves.  491. 

The  term  "annuity"  is  sometimes  applied,  in  a  very  general 
sense,  to  a  yearly  or  stated  payment  of  money.  See  Horton  v. 
Qoolc,  10  Watts  (Penn.),  127. 

§  2.  How  created.  An  annuity  may  be  created  by  deed  or  by 
will ;  and  a  devise,  in  the  following  words :  "  I  give  and  bequeath 
to  my  daughter  A  the  sum  of  sixty  dollars  as  an  annuity,  to  be 
paid  to  her  out  of  the  profits  of  my  real  estate  annually,"  creates 
an  annuity  and  not  a  rent-charge.  Robinson  v.  Townsend,  3  Gill. 
&  Johns.  (Md.)  413. 

Money  lent  and  paid  at  different  times  for  the  education  and 
advancement  of  the  defendant  is  held  a  good  consideration  for 
the  grant  of  an  annuity  {Keif  v.  Ambrose,  7  Term.  K.  651) ;  and 
a  covenant  by  a  husband  to  secure  his  wife  an  annuity  during 
her  life,  in  case  she  should  survive  him,  is  a  sufficient  considera- 
tion for  a  grant  of  an  annuity  from  her  father.  Mx  parte  Dray- 
cott,  2  Glyn.  &  J.  283.  But  past  seduction  and  cohabitation  are 
not  a  good  consideration  to  support  an  annuity.  Beaumont  v. 
Reeve,  8  Q.  B.  483  ;  S.  C,  15  L.  J.  (Q.  B.)  141  ;  10  Jur.  284.  A 
promise  to  pay  an  annuity  in  consideration  of  forbearance  to  sue 
the  personal  representatives  of  the  grantor  is  binding,  and  may 
be  enforced  against  the  promisor.  Horton  v.  Cook,  10  Watts 
(Penn.),  124. 

Annuities  given  by  will,  though  payable  out  of  the  personal 
estate  or  general  funds  of  the  testator,  are  generally  governed  by 
the  principles  applicable  to  a  devise  of  real  estate.  Bradhurst 
V.  Bradhurst,  1  Paige,  331.  The  limitation,  in  a  will,  of  an  an- 
nuity, to  take  effect  upon  the  death  of  the  first  devisee,  without 
issue  living  at  his  death,  is  good  ;  and  the  first  devisee  takes  a 
perpetuity,  subject  to  be  defeated  by  the  happening  of  the  con- 
tingency, and  when  the  limitation  over  becomes  impossible,  his 
right  to  the  annuity  becomes  absolute.  lb. 


ANNUITIES.  325 

A  daughter  who  owned  real  estate,  subject  to  a  life  estate  in. 
her  mother,  who  lived  with  her  upon  the  land,  by  her  will  di- 
rected her  executors  to  lease  "all  her  real  estate"  not  before 
devised,  and  out  of  the  profits  to  pay  her  mother  an  annuity  for 
life.  It  was  held  that'  the  acceptance,  by  the  mother,  of  the 
annuity  under  the  will  was  not  inconsistent  with  her  claim  to 
the  life  estate,  and  that  she  was  entitled  to  both.  Harrington  v. 
Gannon^  1  Paige,  569.  Where  a  sum  of  money  was  secured  by 
bond  to  a  widow,  in  consideration  of  her  relinquishing  her  right 
of  dower,  payable  on  a  certain  day  yearly  during  her  life,  it  was 
held  that  this  was  an  annuity  not  subject  to  apportionment. 
Tracy  v.  Strong,  2  Conn.  659. 

§  3.  Payment  of.  When  the  time  of  payment  is  distinctly 
stated,  the  annuity  must  of  course  be  paid  at  that  time.  But  in 
the  absence  of  any  particular  instructions  it  is  payable  at  the 
end  of  the  year.  Hall  v.  Hall,  2  McCord's  Ch.  (S.  C.)  281 ;  Booth 
V.  Ammerman,  4  Bradf.  (N.  Y.)  129.  An  annuity  left  to  the  wife, 
payable  "  annually,  or  in  any  way  she  may  wish,"  was  ordered 
to  be  paid  quarterly  inadvance.  Hall  v.  Hall,  2  McCord'  s  Ch. 
(S.  C.)  281.  So  where  an  annuity  was  given  by  will  to  the  wife 
of  the  testator,  payable  on  the  first  of  March,  and  the  testator 
died  in  August,  it  was  held  that  the  annuitant  was  entitled  to  the 
full  annuity  on  the  first  day  of  the  following  March.  McLemore 
V.  Ooode,  1  Harp.  Ch.  (S.  C.)  272.  And  where  a  testator  died  in 
September,  having  bequeathed  ' '  a  five  hundred  dollars'  annu- 
ity, ' '  to  be  paid  ' '  on  the  first  day  of  March  in  every  year, ' '  it 
was  held  that  upon  the  first  day  of  March  following  the  testa- 
tor's death,  the  annuitant  was  entitled  to  a  part  of  the  annuity 
proportioned  to  the  time  elapsed  after  the  testator's  death. 
Waring  v.  Purcell,  1  Hill's  Ch.  (S.  C.)  193. 

An  annuity  given  by  a  will  for  the  life  of  the  annuitant,  to  be 
paid  by  the  executors  quarterly,  but  not  charged  upon  the  in- 
come merely,  is  valid.     Oalt  v.  Cook,  7  Paige,  521. 

§  4.  Enforcement  of.  To  enforce  the  payment  of  an  annuity, 
an  action  of  annuity  lay  at  common  law,  or  the  remedy  was  by 
distress,  according  as  the  person  or  the  lands  of  the  grantor 
were  sought  to  be  affected.  The  action  of  annuity  has  long  been 
out  of  use,  being  superseded  by  the  action  of  debt  or  covenant. 
See  1  Tidd's  Pr.  3,  4;  Co.  Litt.  144,  h.  After  judgment  has  been 
rendered  in  an  action, of  debt  on  a  bond  to  secure  the  payment 
of  an  annuity,  a  scire  facias  is  not  requisite  to  warrant  an  exe- 
cution for  subsequent  arrears.  Wood  v.  Wood.  3  Wend.  (N.  Y.) 
454;  Bac.  Abr.,  Annuity,  C.     An  action  will  lie  for  an  annuity 


326  ANNUITIES. 

granted  by  the  defendant  to  tlie  plaintiff  in  consideration  of  faith.- 
ful  services  for  life.    Hope  v.  Coleman^  2  Wils.  221. 

A  bill  in  equity  will  lie  to  enforce  payment  of  an  annuity 
charged  upon  land.  Townshend  v.  Duncan,  2  Bland.  (Md.)  45. 
In  a  suit  in  equity  for  arrears  of  an  annuity,  the  decree  should 
not  only  be  for  the  sums  already  due  and  interest  from  the  times 
at  which  they  were  payable,  but  should  reserve  liberty  to  apply 
to  the  court,  from  time  to  time,  to  extend  its  decree  so  as  to  em- 
brace sums  afterward  becoming  payable.  Marshall  v.  Thomp- 
son, 2  Munf.  (Ya.)  412;   Webb  v.  Jiggs,  4  Maule  &  Selw.  113. 

§  5.  How  determined.  When  an  annuity  is  secured  by  bond, 
the  death  of  the  annuitant  before  the  day  of  payment  defeats  the 
annuity.  Manning  v.  Randolph,  4  N.  J.  L.  (1  South.)  144. 
And  where  a  person  who  has  an  annuity  charged  upon  certain 
real  estate,  inherits  one-half  of  such  estate  as  the  heir  at  law  of 
the  devisee  of  the  grantor  of  the  annuity,  one -half  of-  such  an- 
nuity becomes  merged  by  the  descent  thus  cast  upon  him.  Jen- 
Tcins  V.  Yan  Schaack,  3  Paige,  242. 

Upon  a  bequest  to  the  testator's  wife  of  an  annuity  "during 
her  widowhood  and  life,"  it  was  held,  that  the  testator  evidently 
intended  it  should  cease  upon  her  second  marriage,  but  that 
such  intention  being  ^'' in  terrorem,^''  and  against  the  policy  of 
the  law,  as  in  restraint  of  marriage,  could  not  take  effect;  and 
that  the  widow  was  entitled  to  the  annuity  during  her  life  not- 
withstanding  her  second  marriage,  the  same  not  being  expressly 
devised  over,  except  to  the  residuary  legatee,  who  was  heir  at 
law  to  the  testator.    Parsons  v.  Winslow,  6  Mass.  169. 

Where  an  annuity  bond  is  in  the  penal  sum  of  $1,000,  condi- 
tioned to  pay  $100  yearly  during  the  obligee's  life,  the  payment 
for  ten  years  is  no  bar  to  the  obligee' s  further  claim  during  his 
life.  Blaokmer  v.  Blackmer,  5  Vt.  35o.  Where  the  obligor's 
estate  is  represented  insolvent,  in  such  case,  the  commissioners 
should  allow,  on  the  bond,  only  what  was  due  at  the  time  of 
the  obligor's  death.  Whatever  subsequently  becomes  due  may 
be  collected  of  the  obligor' s  heirs,  if  they  have  assets.  Id. 

Under  a  provision  that  an  annuity  should  cease  if  a  lady 
should  associate,  continue  to  keep  company  with,  or  cohabit,  or 
criminally  correspond  with  one  F.,  it  was  held,  that  all  inter- 
course whatever,  though  the  most  innocent,  is  within  the  terms 
of  the  deed.     Dormer  v.  Knight,  1  Taunt.  417. 

An  annuity  may  be  purchased,  like  other  property,  and  in- 
equality of  price  will  not,  of  itself,  make  the  contract  usurious 
Lloyd  V.  ScoU,  4  Pet.  (U.  S.)  205. 


APPLICATION  OF  PURCHASE-MONEY.  327 

CHAPTER  XII. 

APPLICATION  OF  PURCHASE-MONEY. 

TITLE  I. 

GENEEAL    RULES   RELATING   TO   THE    APPLICATION    OF 
PURCHASE-MONEY. 

ARTICLE  I. 

PUECHASEE,    IK   WHAT  CASES  BOUND  TO  SEE  TO  THE  APPLICATION  OF. 

Section  1.  General  rule  as  to.  The  general  rule  on  this  sub- 
ject is  briefly  stated  to  be,  that  where  the  trust  or  charge  is  of 
a  defined  and  limited  nature,  the  purchaser  must  see  to  the  ap- 
plication of  the  purchase-money  ;  otherwise,  when  it  is  general 
and  unlimited.  Duffy  v.  Calnert,  6  Gill.  487 ;  >S'^.  Mary' s  Church 
V.  Stockton,  4  Halst.  Ch.  (N.  J.)  620  ;  Murray  \.  Ballou,  1  Johns. 
Ch.  (N.  Y.)  566.  See  Stronghill  v.  Anstey,  1  De  G.,  M.  &  G.  635. 
To  impose  on  a  purchaser  the  duty  of  seeing  to  the  application 
of  the  purchase-money,  the  trust  must  be  of  such  a  nature  that 
the  purchaser  would  reasonably  be  expected  to  see  to  the  appli- 
cation of  the  purchase-money.  Such  will  be  the  case  where 
land  is  charged  with  the  payment  of  particular  debts  ;  but  if  not 
specified  he  is  not  bound.  Sims  v.  Livdy,  14  B.  Monr.  (Ky.) 
348. 

§  2.  Where  the  trust  is  specific.  In  the  application  of  the  rule 
above  stated,  it  has  been  generally  held  that  where  the  trust  is 
created,  or  the  charge  is  imposed,  for  the  payment  of  a  portion, 
a  mortgage,  legacies,  or  scheduled  debts,  which  are  definitely 
ascertained,  and  to  be  paid  over  immediately  to  the  person  en- 
titled, the  purchaser,  in  the  view  of  a  court  of  equity,  is  bound 
to  see  that  the  money  is  actually  applied  to  their  discharge  before 
the  estate  is  relieved  from  the  burden.  Swasey  v.  Little,  7  Pick. 
(Mass.)  296  ;  Bugiee  v.  Sargent,  23  Me.  269 ;  Long  v.  Long,  1 
Watts  (Penn.),  267  ;  Hoo'oer  v.  Hooter,  5  Barr  (Penn.),  351  ;  Doto- 
man  v.  Must,  6  Rand.  (Va.)  587  ;  Leamtt  v.  Wooster,  14  N.  H. 
550.    See  Stronghill  v.  Anstey,  1  De  G.,  M.  &  G.  653. 


328  APPLICATION  OF  PURCHASE-MONEY. 

§  3.  Where  the  trust  is  general  and  indefinite.  But  where  the 
trust  is  created  or  the  charge  exists  for  the  payment  of  debts 
generally,  or  for  the  payment  of  debts  and  legacies,  when  an  ac- 
count of  the  debts  necessarily  precedes  the  payment  of  the 
legacies ;  or  where  the  money  is  to  be  reinvested  or  otherwise 
applied  by  the  trustee  to  purposes  which  require  time,  delibera- 
tion, and  discretion  on  his  part,  the  purchaser  is  relieved  from 
such  responsibility,  and  the  cestuis  que  trust  must  look  alone 
to  the  trustee.  Laurens  v.  Lucas,  6  Rich.  Eq.  (S.  C.)  217 ;  Gard- 
ner V.  Gardner,  3  Mason,  178  ;  Andreios  v.  Sparhawlc,  13  Pick. 
393  ;  Cadhury  v.  Duml,  10  Barr  (Penn.),  265  ;  Grant  v.  IlooJc,  13 
Serg.  &  R.  (Penn.)  259 ;  Potter  v.  Gardner,  12  Wheat.  (U.  S.) 
198  ;  Williams  v.  Otey,8  Humph.  (Tenn.)  568 ;  Clyde  v.  Simpson, 
4  Ohio  St.  445 ;  BoUnson  v.  Lowater,  5  De  G.,  M.  &  G.  272;  S. 
C,  17  Beav.  592  ;  Lining  v.  Peyton,  2  Desauss.  (S.  C.)  375 ;  Red- 
heimer  v.  Pyson,  1  Spear  (S.  C),  135. 

§  4.  Collusion  or  fraud  of  purchaser.  All  personal  property 
is  bound  for  the  payment  of  debts,  and  a  purchaser  is  not  bound 
to  know  whether  there  are  debts  or  not,  nor  is  he  bound  to  see 
to  the  application  of  the  purchase-money.  Keane  v.  Roharts, 
4  Mad.  356.  Thus  an  executor  has  power  to  sell  personal  assets 
of  his  testator,  and  even  chattels  specifically  d&vised ;  and  the 
purchaser  has  no  concern  with  the  purchase-money.  McLeod  v. 
Drummond,  17  Ves.  160 ;  see  Field  v.  ScMeffelin,  7  Johns.  Ch. 
150.  If,  however,  there  be  :^raud  and  collusion  in  the  trans- 
action, as  where  the  chattel  is  sold  for  a  nominal  price  only,  or 
at  a  fraudulent  undervalue.  Ewer  v.  Coriet,  2  P.  Wms.  149  ;  or, 
if  the  purchaser  receives  the  chattel  in  payment  of  the  execu- 
tor's own  debt  to  him,  Wilson  v.  Poster,  7  Ired.  (N.  C.)  Eq.  231 ; 
Podson  V.  Simpson,  2  Rand.  (Ya.)  294  ;  or  if  he  knows  that  the 
executor  intends  to  misapply  the  money,  and  the  sale  is  made 
for  that  purpose;  Sacia  v.  BertTioud,  17  Barb.  15 ;  Railway  Co. 
V.  Barlcer,  29  Penn.  St.  160;  Garrard  v.  Railroad  Co.,  id.  154; 
Miller  v.  Williamson,  5  Md.  219.  In  all  these,  and  the  like  cases 
of  collusion  and  fraud  between  the  executor  and  purchaser,  the 
latter  cannot  protect  himself  under  the  absolute  power  of  the 
former  to  sell.  See  Williams  v.  Branch  Panic,  7  Ala.  906  ;  Wil. 
liamson  v.  Morton,  2  Md.  (Ch.)  94;  Elliott  v.  Merryman,  Barn. 
81;  1  White's  Eq.  Lead.  Cas.  40  (58);  Field  v.  ScMeffelin,  7 
Johns.  Ch.  150.  For  although  the  purchaser  will  take  a  good 
title  at  law,  equity  will  convert  him  into  a  trustee,  and  make 
him  accountable  to  the  creditors  or  cestuis  que  trust.    P"  Oyley 


APPLICATION  OF  PURCHASE-MONEY.  329 

V.  Lomland,  1  Strobh.  L.  (S.  C.)  46;  Perry  on  Trusts,  §  598. 
It  has  been  said,  that  in  the  United  States  the  English  doc- 
trine, in  regard  to  the  application  of  the  purchase-money, 
has  rarely  been  administered  except  in  cases  of  fraud  in  which 
the  purchaser  was  a  coadjutor,  the  general  rule  here  being, 
that  the  purchaser,  who  in  good  faith  pays  the  purchase- 
money  to  the  person  authorized  to  sell,  is  not  bound  to  look 
to  its  application,  and  that  there  is  no  difference  in  this 
respect  between  lands  charged  in  the  hands  of  an  heir  or  devisee 
with  the  payment  of  debts,  and  lands  devised  to  a  trustee  to  be 
sold  for  that  purpose.  1  Cruise's  Dig.,  tit.  12,  c.  4,  §  36,  note;  and 
see  CJiampUn  v.  HaigJit,  10  Paige,  275 ;  Dwffy  v.  Calvert,  6  Gill, 
48 ;  CryderC  s  Appeal,  1  Jones  (N.  C),  72 ;  Garnett  v.  Maco7i^ 
6  Call  (Va.),  309,  354. 

§  5.  Purchaser  of  real  estate.  One  of  the  English  rules  laid 
down  in  the  leading  case  on  the  subject  is,  that  if  the  trust 
directs  lands  to  be  sold  for  the  payment  of  certain  debts,  men- 
tioning in  particular  to  whom  those  debts  are  owing,  the  pur- 
chaser is  bound  to  see  that  the  money  is  applied  for  the  payment 
of  those  debts.  Elliott  v.  Merryman,  Barn.  78;  1  White's 
Eq.  Lead.  Cas.  40  (58) ;  and  see  J^VLeod  v.  Drummond,  17 
Yes.  162 ;  Horn  v.  Horn,  2  Sim.  &  Stu.  448.  This  rule  is  not 
favored  in  all  its  strictness  by  the  American  courts  (see  3  Redf. 
on  Wills,  235  ;  StrongMll  v.  Anstey,  1  DeG.,  M.  &  G.  653,  note), 
although  they  apply  the  doctrine  in  those  cases  where  it  would 
seem  to  be  unavoidable.  Rutledge  v.  Smith,  1  Busb.  Eq.  (N.  C.) 
283 ;  Balzell  v.  Crawford,  1  Pars.  Eq.  (Penn.)  57.  But  in  cases 
where  the  devise  is  for  the  payment  of  debts  generally,  and  also 
for  the  payment  of  legacies,  the  trust  becomes  a  mixed  one,  and 
the  purchaser  is  not  bound  to  see  to  the  application  of  the  pur- 
chase-money, because  to  hold  him  liable  to  see  the  legacies  paid 
would,  in  fact,  involve  him  in  the  necessity  of  taking  an  account 
of  all  the  debts  and  assets.  Andreios  v.  SparTiaiolc,  13  Pick.  393; 
Sims  V.  Lively,  14  B.  Monr.  (Ky.)  435 ;  Goodrich  v.  Proctor^ 
1  Gray,  567.  So,  it  is  well  settled,  that  a  purchase  under  a  de- 
cree of  a  court  has  no  concern  with  the  disposition  which  the 
court  may  make  of  the  purchase-money,  nor  can  his  right  as  a 
purchaser  be  affected  by  any  misapplication  which  he  may  make 
of  it.  Wilson  v.  Davisson,  2  Rob.  (Ya.)  385  ;  Coorribs  v.  Jordon, 
3  Bland,  284 ;  1  Lead.  Cas.  Eq.  76. 

Where  there  is  a  devise  of  real  estate  for  the  payment  of  debts 
generally,  or  the  testator  charges  his  debts  generally  upon  his 

YoL.  L  — 42 


330  APPLICATION  OF  PURCHASE-MONEY. 

real  estate,  and  the  money  is  raised  by  the  trustee  by  sale  or 
mortgage,  it  is  universally  agreed,  that  the  same  rule  applies  as 
in  cases  of  personalty ;  namely,  that  the  purchaser  or  mortga- 
gee is  not  bound  to  look  to  the  application  of  the  purchase- 
money.  Gardner  v.  Gardner,  3  Mason,  178,  218 ;  Wormley  v. 
Wormley,  8  Wheat.  (U.  S.)  421,  422 ;  Greetham  v.  Colton,  34 
Beav.  615  ;  Robinson  v.  Lowater,  5  De  G.,  M.  &  G.  272  ;  1  Lead. 
Cas.  Eq.  (59),  74.  Always  subject,  however,  to  the  exception, 
that  if  the  purchaser  or  mortgagee  is  knowingly  a  party  to  any 
breach  of  trust,  by  the  sale  or  mortgage,  it  shall  afford  him  no 
protection.  Garnett  v.  Macon,  6  Call  (Va.),  308;  Potter  y.  Gard- 
ner, 12  Wheat.  (U.  S.)  498  ;  Eland  v.  Eland,  4  M.  &  Cr.  427. 

§  6.  Where  discretion  is  to  Ibe  exercised  by  trustee.  Where 
the  trust  is  defined  in  its  object,  and  the  purchase-money  is  to 
be  reinvested  upon  trusts  which  require  time  and  discretiou,  or 
the  acts  of  sale  and  reinvestment  are  manifestly  contemplated 
to  be  at  a  distance  from  each  other,  it  seems  that  the  purchaser 
is  not  bound  to  look  to  the  application  of  the  purchase-money. 
For  the  trustee  is  clothed  with  a  discretion  in  the  management 
of  the  trust  fund,  and  if  any  persons  are  to  suffer  by  his  mis- 
conduct, it  should  be  rather  those  who  have  reposed  confidence, 
than  those  who  have  bought  under  an  apparently  authorized 
act.  See  Wormley  v.  Wormley,  6  Wheat.  (U.  S.)  421,  442  ;  Far- 
Jcer  V.  ClarJcson,  4  W.  Ya.  407 ;  Locke  v.  Lomas,  5  De  Gr.  &  Sm. 
326  ;  Hedheimer  v.  Fey  son,  1  Spear's  Eq.  (S.  C)  135  ;  Lining  v. 
Feyton,  2  Desauss.  ^(S.  C.)  375;  Coonrodw.  Coonrod,  6  Hamm. 
114  ;  Hauser  v.  Shore,  5  Ired.  Eq.  (N.  C.)  357 ;  Sims  v.  Lively, 
14  B.  Monr.  (Ky.)  348. 

§  7.  Where  the  testator  reposes  the  trust  of  applying  the  money 
in  the  trustee.  In  a  late  case  in  England,  the  Lord  Chancellor 
observed,  "that  if  a  trust  be  created  for  the  payment  of  debts 
and  legacies,  the  purchaser  or  mortgagee  shall  in  no  case  be 
bound  to  see  to  the  application  of  the  money  raised.  This  would 
be  a  consistent  rule  on  which  everybody  would  be  able  to  act, 
authorized,  too,  by  the  words  of  the  testator,  and  drawing  none 
of  those  fine  distinctions  which  embarrass  courts  and  counsel, 
and  lead  to  litigation.' '  Stronghill  v.  Anstey,  1  De  G.,  M.  &  Q. 
653. 

The  rule,  as  thus  stated,  is  placed  upon  the  ground  that  when 
a  testator,  by  his  will,  has  given  his  trustees  a  power  to  sell  to 
pay  debts  generally,  or  to  pay  particular  debts,  or  to  pay  legacies 
only,  he  has  reposed  a  special  confidence  in  the  trustee  for  those 


APPLICATION  OF  PURCHASE-MONEY.  331 

purposes ;  and  in  all  such  cases,  it  is  unreasonable  to  require 
the  purchaser  to  look  to  the  application.  Id.  This  principle 
has  been  characterized  as  the  true  one  to  designate  an  intelligi- 
bly distinction  among  the  cases.  See  2  Story's  Eq.  Juris.  1132  a  ; 
3  Redf.  on  Wills,  236 ;  see,  also,  Grant  v.  HooTi,  13  Serg.  &  R. 
259  ;  Cadbury  v.  Duval^  10  Barr  (Penn.),  265. 


332  ASSAULT  AND  BATTERY. 

CHAPTER  XIIT. 

ASSAULT  AND  BATTERY. 
ARTICLE  1. 

OF  ASSAULT  AND   BATTEET. 

Section  1.  What  is  an  assault.  An  assault  is  an  attempt  or 
offer  to  strike,  beat,  or  commit  any  other  act  of  violence  on  the 
person  of  another,  and  against  his  will,  without  actually  doing  it, 
or  touching  his  person.  Johnson  v.  TompMns,  1  Baldw.  (C.  C.) 
571,  600.  Or,  as  otherwise  defined,  an  assault  is  an  unequivocal 
purpose  of  violence,  accompanied  by  an  act,  which,  if  not  stopped 
or  diverted,  will  be  followed  by  personal  injury.  State  v.  Mal- 
colm, 8  Iowa,  413  ;  People  v.  Tslas,  27  Cal.  630  ;  and  see  Com- 
monwealth V.  Ruggles,  6  Allen  (Mass.),  588 ;  Hays  v.  The 
People,  1  Hill  (N.  Y.),  351 ;  State  v.  Vannoy,  65  N.  C.  532  ;  Reg. 
V.  Martin,  9  C.  &  P.  215  ;  Christopher  son  Y.Bare,  11  Q.  B.  473. 
An  assault  may  consist  in  striking  at  another  with  the  hand,  or 
with  a  stick,  or  by  shaking  the  fist  at  him,  or  piesenting  a  gun 
or  other  weapon  within  such  distance  as  that  a  hurt  might  be 
given,  or  by  drawing  a  sword  .and  brandishing  it  in  a  menacing 
manner ;  provided  the  act  is  done  with  intent  to  do  some  corporal 
injury.  United  States  v.  Hand,  3  Wash.  425;  Rlchels  v.  State^ 
1  Sneed  (Tenn.),  606 ;  United  States  v.  Ortega,  4  Wash.  534 ; 
Murray  v.  Boyne,  42  Mo.  472  ;  State  v.  Hampton,  63  N".  C.  13  ; 
United  States  v.  Myers,  1  Cranch  (C.  C),  310.  To  constitute  an 
assault  with  a  gun  or  pistol,  it  is  necessary  that  the  weapon 
should  be  presented  at  the  party  assaulted,  within  the  distance 
at  which  it  may  do  execution.  Tower  v.  State,  43  Ala.  354  ;  see 
HigginhotJiam  v.  State,  23  Tex.  674  ;  State  v.  Epperson,  27  Mo. 
255  ;  State  v.  Church,  63  N.  C.  15.  But  it  is  immaterial  whether 
the  weapon  be  loaded  or  not,  if  the  plaintiflf  was  ignorant  upon 
that  point.  Beach  v.  HancocJc,  7  Fost.  (N.  H.)  223 ;  State  v. 
Smith,  2  Humph.  (Tenn.)  457 ;  State  v.  Shepard,  10  Iowa,  126 ; 
Commonwealth  v.  Wliite,  110  Mass.  407 ;  Crow  v.  State,  41  Texas, 
468.  It  is  an  assault,  if  one  person  ride  after  another,  and  oblige 
him  to  run  to  a  place  of  safety,  in  order  to  avoid  injury.  3forton 
V.  Shoppee,  3  C.  &  P.  373 ;  see  State  v.  Rawles,  65  N.  C.  334 ; 


ASSAULT  AND  BATTERY.  333 

State  V.  Sims,  3  Strobli.  (S.  C.)  137.  Or,  if  he  throw  at  him  a  mis- 
sile capable  of  doing  injury,  with  intent  to  wound,  though  it  does 
not  strike.  Morton  v.  Shoppee,  3  0.  &  P.  373.  Or  advances,  in 
a  menacing  attitude,  to  strike  the  plaintiff,  so  that  the  blow 
would  in  a  few  seconds  have  reached  him,  if  the  defendant  had 
not  been  stopped.  Stephen  v.  Myers,  4  id.  349.  Or  even,  if  at  the 
time  the  defendant  was  stopped,  he  was  not  near  enough  for  his 
blow  to  have  taken  effect.  State  Y.Yannoy,  6.5  N.  C.  532.  To 
violently  attack  and  strike  with  a  club,  the  horse  harnessed  to  a 
carriage  in  which  a  person  is  riding,  would  seem  to  be  an  assault 
upon  the  person.  De  Marentille  v.  Oliner,  1  Penning.  (N.  J.) 
380;  see  Kirland  v.  State,  43  Ind.  146.  And  to  approach  a 
person  in  possession  of  chattels,  brandishing  a  knife  and  threat- 
ening and  intending  to  do  him  bodily  harm,  unless  he  yields  pos- 
session, is  an  assault.  Barnes  v.  Martin,  15  Wis.  240  ;  see,  also. 
United  States  v.  Richardson,  5  Cranch  (C.  C),  348 ;  State  v. 
Morgan,  3  Ired.  L.  (N.  C.)  186.  So,  where  the  defendant  ordered 
the  plaintiff  to  leave  his  shop,  and  on  his  refusal,  sent  for  some 
men,  who  gathered  round  the  plaintiff,  tucked  up  their  sleeves 
and  aprons,  and  threatened  to  break  his  neck  if  he  did  not  go  out, 
and  would  have  put  him  out  if  he  had  not  gone  out ;  this  was 
held  to  be  an  assault  upon  the  plaintiff.  Read  v.  Coker,  24  Eng. 
Law  &  Eq.  213 ;  S.  C,  13  C.  B.  860.  Cutting  off*  the  hau-  of  a 
pauper  in  a  poor-house  was  held  to  be  an  assault.  Forde  v. 
Skinner,  4  C.  &  P.  239  ;  and  so,  of  hitting  at  one  man  and  unin- 
tentionally striking  another.  James  v.  Camphell,  5  C.  &  P.  372 ; 
see  State  v.  Myers,  19  Iowa,  617.  And  to  put  a  deleterious  drug 
into  coffee,  in  order  that  another  may  take  it,  if  it  is  actually 
taken,  amounts  to  an  assault.  Button!  s  Case,  8  Carr.  &  P.  660. 
And  it  is  an  assault  to  take  indecent  liberties  with  a  female 
pupil  or  patient,  although  no  resistance  be  offered.  Rex  v.  Ros- 
inski,  Ry.  &  M.  19  ;  Rex  v.  Nichol,  Russ.  &  Ry.  130 ;  see  Hays 
V.  Tlie  People,  1  Hill  (N.  Y.),  351 ;  Rex  v.  Jackson,  Russ.  &  Ry. 
487. 

§  2.  What  is  not  an  assault.  Mere  threats,  unaccompanied  by 
an  offer  or  attempt  to  inflict  bodily  harm,  do  not  constitute  an 
assault.  State  v.  Mooney,  Phill.  L.  (N.  C.)  434 ;  Smith  v.  State, 
39  Miss.  521 ;  Keyes  v.  Deiolin,  3  E.  D.  Smith  (N.  Y.),  618  ;  Ste- 
phens v.  Myers,  4  0.  &  P.  349.  And  words  accompanying  a 
threatening  gesture  may  deprive  the  gesture  of  the  character  of 
an  assault  {Commonwealth  v.  Eyre,  1  Serg.  &  R.  [Pa.]  347) ;  as 
where  the  defendant  raised  his  whip,  and  shook  it  at  the  plaintiff, 


834  ASSAULT  AND  BATTERY. 

thougti  within  striking  distance,  and  made  use  of  tlie  words  : 
"  Were  you  not  an  old  man,  I  would  knock  you  down  "  {State 
V.  Crow,  1  Ired.  L.  [N  C]  375) ;  or,  where  one  said,  laying  his 
hand  on  his  sword  in  a  threatening  manner,  "If  it  were  not 
assize-time  I  would  not  take  such  language  from  you."  Tuber - 
mile  V.  Savage,  1  Mod.  3.  So  it  has  been  held  that,  if  a  man  pre- 
sents an  unloaded  pistol  at  another,  and  at  the  same  time  says 
that  he  does  not  intend  to  shoot  him,  this  is  no  assault.  BlaJce 
V.  Barnard,  9  C.  &  P.  628. 

The  drawing  a  pistol,  without  presenting  or  cocking  it,  does 
not  amount  to  an  assault.  Lawson  v.  State,  30  Ala.  14.  And 
the  same  was  held  where  a  person,  holding  a  cocked  pistol  by 
his  side,  said  to  his  antagonist,  without  any  attempt  to  use  the 
pistol,  "  I  am  now  ready  for  you."  Warren  v.  State,  33  Tex.  517. 
So  holding  the  pistol  in  the  hand  or  hands,  pointing  in  the  direc- 
tion of  a  man  within  distance,  but  not  held  as  if  about  to  fire,  and 
without  the  immediate  intention  to  fire,  is  not  a  presenting,  and 
does  not  constitute  an  assault.  Woodruff  v.  Woodruff,  22  Ga. 
237  ;  Farver  v.  State,  43  Ala.  354.  And  where  the  defendant 
presented  a  gun,  within  shooting  distance,  against  the  prosecu- 
tor, who  was  then  armed  with  a  knife  and  about  to  attack  the 
defendant,  but  there  was  no  attempt  to  use  the  gun  nor  any  in- 
tention to  use  it,  unless  first  assailed  with  the  knife,  this  was  held 
no  assault.    State  v.  Blackwell,  9  id.  79. 

A  person  who  fires  a  pistol  merely  to  frighten  an  assailant, 
and  hits  him,  is  not  guilty  of  an  assault  and  battery  if  the  attack 
was  so  formidable  as  to  justify  in  self-defense  the  defendant,  thus 
exposing  the  person  of  the  assailant  to  danger.  Commonwealth 
V.  Mann,  116  Mass.  58. 

Stopping  and  preventing  a  person  by  means  of  threats,  from 
passing  along  the  public  highway,  was  held  to  be  an  illegal  im- 
prisonment and  an  assault.  Bloomer  v.  State,  3  Sneed  (Tenn.), 
66.  But  to  stand  in  another' s  way,  and  passively  obstruct  his 
progress,  as  any  inanimate  object  would,  though  by  design,  is 
no  assault ;  as  where  a  policeman,  in  this  manner,  prevented  a 
member  of  a  society  from  entering  the  society's  room.  Innes  v. 
Wylie,  1  Car.  &  K.  257.  And,  generally,  any  mere  omission  will 
not  constitute  an  assault.  Thus,  where  a  man  kept  an  idiot, 
bed-ridden  brother  in  a  dark  room  in  his  house,  without  sufficient 
warmth  or  clothing,  it  was  held  not  to  amount  to  an  assault. 
SmitJi's  case,  2  Carr.  &  P.  449.  So  it  is  no  assault  to  separate 
persons  who  are  fighting.    Griffn  v.  Parsons,  1  Selw.  25,  26. 


ASSAULT  AND  BATTERY.  335 

Acts  which  may  embarrass  and  distress  do  not  necessarily 
amount  to  an  assault.  Thus,  a  declaration  alleging  that  the  de- 
fendant, with  force  and  arms,  committed  an  assault  upon  the 
female  plaintiff,  is  not  sustained  by  evidence,  that  the  defendant, 
a  reasonable  time  after  determining  the  plaintiffs  tenancy,  peace- 
ably entered  the  premises,  requested  the  plaintiffs  to  leave  and 
remove  their  furniture,  and  upon  their  refusal  burst  open  an 
inner  door,  which  she  wrongfully  fastened  and  refused  to  open, 
took  off  the  doors  and  windows  on  a  cold  day  in  winter,  brought 
a  bloodhound  into  the  house,  made  a  great  noise  in  the  premises 
for  several  days,  and  refused  to  permit  any  food  to  be  furnished 
to  her  from  the  outside.  Stearns  v.  Sampson^  69  Me.  568  ;  S.  C,  8 
Am.  Rep.  442.  So,  a  declaration  which  alleges  that  A  broke  and  en- 
tered a  house,  and  committed  an  assault  on  B  therein,  is  not 
proved,  as  to  the  assault,  by  evidence  that  A,  having  a  right  to 
immediate  possession  of  the  house,  entered  the  same  and  forci- 
bly took  away  the  windows  of  the  room  in  which  B  was  sick  in 
bed,  without  evidence  that  A  knew  that  B  was  in  the  house. 
Meader  v.  Stone,  7  Mete.  (Mass.)  147. 

§  3.  What  is  a  battery.  A  battery  is  an  unlawful  touching  the 
person  of  another  by  the  aggressor  himself,  or  by  any  other  sub- 
stance put  in  motion  by  him.  1  Saund.  29.  And  see  Common- 
wealth  V.  Ruggles,  6  Allen  (Mass.),  588 ;  Kirland  v.  State,  43 
Ind.  146 ;  S.  C,  13  Am.  Rep.  386,  392  ;  Johnson  v.  State,  35  Ala. 
363.  And  every  battery  includes  an  assault.  Johnson  v.  State, 
Yi  Tex.  515.  The  mere  laying  of  the  hand  gently  on  the  person 
of  another,  if  done  in  anger,  or  in  a  rude  and  insolent  manner, 
or  with  a  view  to  hostility,  amounts  to  a  battery.  Id.  Cole  v. 
Turner,  6  Mod.  149;  United  States  v,  Ortega,  4  Wash.  634.  So, 
if  one  is  violently  jostled  out  of  the  way,  or  is  spit  upon.  James 
V.  Camjpbell,  5  Carr.  &  P.  372  ;  Reg.  v.  Cotesworth,  6  Mod.  172 ; 
or  has  his  hat  insolently  knocked  of.  Ford  v.  Skinner,  4  Carr. 
&  P.  239;  or  has  water,  stones,  or  dirt  rudely  thrown  upon  him; 
Pur  sell  V.  Horn,  8  Ad.  &  El.  604 ;  or  is  pushed  back  by  the 
open  hand  of  another  placed  upon  his  breast.  State  v.  Baker,  65 
N.  C.  322  ;  the  person  guilty  of  the  violence  in  these  cases  may 
be  held  liable  in  an  action  for  an  assault  and  battery.  And  any 
thing  attached  to  the  person  partakes  of  its  inviolability;  hence, 
a  blow  on  the  skirt  of  one' s  coat,  when  upon  his  person,  is  an 
assault  and  battery.  Republlca  v.  DeLongchamps,  1  Dall.  114. 
And  so  of  striking  one's  cane,  while  in  his  hand.  Id.  Kirland 
V.  State,  43  Ind.  146  ;  S.  C,  13  Am.  Rep.  386,  392  ;  or  taking  hold 


336  ASSAULT  AND  BATTERY. 

of  one's  clothes  in  an  angiy  or  insolent  manner.  United  States 
y.  Ortega,  4  Wash.  534.  Striking  a  horse  which  a  man  is  riding, 
whereby  he  is  thrown,  is  a  battery  {Dodwell  v.  Burford,  1  Mod. 
24 ;  S.  C,  1  Sid.  433  ;  Bull  v.  Colton,  22  Barb.  94.  See  Kirland 
V.  State,  43  Ind.  146  ;  S.  C,  13  Am.  Rep.  386);  as  is  likewise  up- 
setting a  carriage  or  chair,  in  which  one  is  sitting.  Hopper  v. 
Meeve,  7  Taunt.  698.  And  it  is  a  battery  for  an  officer  to  hand- 
cuff a  prisoner  previous  to  his  conviction,  when  there  is  no  at- 
tempt to  escape,  nor  any  reasonable  ground  to  fear  a  rescue. 
Griffi7i  V.  Coleman,  4  H.  &  N.  265  ;  Wright  v.  Court;  4  B.  &  C. 
596. 

Although  the  least  touching  of  another  in  anger  is  a  battery, 
yet  the  mere  taking  hold  of  the  coat,  or  laying  the  hand  gently 
upon  the  person,  does  not  amount  to  this  offense,  if  done  in 
friendship,  or  for  a  benevolent  purpose,  and  the  like.  See  Cole 
V.  Turner,  6  Mod.  149 ;  United  States  v.  Ortega,  4  Wash.  (C.  C) 
531 ;  Coward  v.  Baddeley,  4  H.  &  N.  481 ;  Wiffin  v.  Kincard,  2 
B.  &  P.  (N.  R.)  472.  The  party' s  intention  must  be  considered, 
for  people  will  sometimes,  by  way  of  joke  or  in  friendship,  clap 
a  man  on  the  back,  and  it  would  be  ridiculous  to  say  that  every 
such  case  constitutes  a  battery.  Lord  Hardwicke,  in  Williams 
V.  Jones,  Hard.  301.     See  Fitzgerald  v.  Camn,  110  Mass.  153. 

§  4.  Wounding  and  mayhem.  Where  the  assault  is  carried  to 
the  extent  of  wounding  a  person,  the  offense  is,  of  course,  re- 
garded in  a  much  more  serious  light  than  a  common  assault,  and 
the  person  injured  will  be  entitled  to  recover  heavy  damages, 
unless  the  wounding  can  be  justified  or  excused  in  some  of  the 
ways  to  be  hereafter  mentioned.  Mayhem  is  defined  to  be  the 
act  of  unlawfully  and  violently  depriving  another  of  the  use  of 
such  of  his  members  as  may  render  him  less  able  in  fighting, 
either  to  defend  himself  or  annoy  his  adversary.  2  Bouv.  Diet. 
163.  Thus  the  cutting  or  disabling,  or  weakening,  a  man's  hand 
or  finger,  or  striking  out  his  eye  or  foretooth,  or  depriving  him 
of  those  parts  the  loss  of  which  abates  his  courage,  are  held  to 
be  mayhems.  Id. ;  Chicle  v.  State,  7  Humph.  (Tenn.)  161.  But 
cutting  off  the  ear  or  nose,  or  the  like,  are  not  held  to  be  may- 
hems at  common  law.  4  Bl.  Com.  205.  See  Godfrey  v.  People, 
5  Hun  (N.  Y.),  369. 

Mayhem  is  an  aggravated  trespass  {Commonwealth  v.  Newell, 
7  Mass.  245,  248) ;  and  one  peculiar  feature  for  an  action  at 
common  law  for  a  mayhem  is  said  to  be  that  the  court  in  which 
the  action  is  brought  have  a  discretionary  power  to  increase  the 


ASSAULT  AND  BATTERY.  337 

damages,  if  they  tliink  the  jury  at  the  trial  have  not  been  suffi- 
ciently liberal  to  the  plaintiff.  But  this  must  be  done  super 
visum  nulneris,  and  upon  proof  that  it  is  the  same  wound  con- 
cerning which  evidence  was  given  to  the  jury.  See  Brown  v. 
Seymour,  1  Wils.  5  ;  CooJc  v.  Beal,  1  Ld.  Raym.  176,  339  ;  S.  C, 
3  Salk.  nS  ;  Bui.  (N.  P.)  21.  It  would  seem,  however,  that  this 
common-law  rule  is  no  longer  recognized,  and  the  true  doctrine 
is,  that  in  all  cases  sounding  in  damages,  these  damages  are  to 
be  assessed  by  the  jury,  under  the  authority  of  the  court,  and 
not  by  the  court  independently  of  the  jury.  McCoy  v.  Lemon, 
11  Rich.  (S.  C.)  165;  Worster  v.  Proprietors  of  Canal  Bridge,  16 
Pick.  (Mass.)  547. 


ARTICLE  II.    . 

OF   DEFENSES,   EXCUSES   Ai^D   JUSTIFICATION. 

Section  1.  Accident.  The  subject  of  accident  has  been  discussed 
at  length  in  a  preceding  chapter.  See  ante,  160,  chap.  III.  It  may 
be  stated  generally,  however,  that  if  an  injury  is  occasioned  by  an 
unavoidable  accident,  no  action  will  lie  for  it ;  but  if  any  blame 
is  imputable  to  the  defendant,  though  he  had  no  intention  to 
injure  the  plaintiff  or  any  other  person,  he  is  liable  for  the  dam- 
ages sustained.  Bygert  v.  Bradley,  8  Wend.  469  ;  Harvey  v. 
Dunlop,  Hill  &  Denio  (N.  Y.),  193;  Browne.  Collins,  53 N.  H. 
442  ;  16  Am.  Rep.  372  ;  Losee  v.  Buchanan,  51  N.  Y.  (6  Sick.) 
476;  S.  C,  10  Am.  Rep.  623.  By  an  unavoidable  accident,  in  legal 
phraseology,  is  not  to  be  understood  an  accident  which  it  was 
physically  impossible  tn  the  nature  of  things  for  the  defendant  to 
have  prevented  ;  but  that  it  was  not  occasioned  in  any  degree, 
either  remotely  or  directly,  by  the  want  of  such  care  or  skill  as  the 
law  holds  every  man  bound  to  exercise.    Walieman  v.  Rohlnsony 

1  Bing.  212  ;  Dygert  v.  Bradley,  8  Wend.  469 ;  and  see  Brown 
v.  Kendall,  6  Cush.  (Mass.)  292  ;  Paxton  v.  Boyer,  67  111.  132  ; 
16  Am.  Rep.  615 ;  Castle  v.  Duryea,  32  Barb.  280;  S.  C.  affirmed, 

2  Keyes,  169  ;  1  Abb.  Ct.  App.  (N.  Y.)  169. 

§  2.  Self-defense.  An  action  for  assault  and  battery  may  be 
successfully  defended  on  the  principle  of  self-defense  ;  for  if  one 
strikes  me  first,  or  even  only  assaults  me,  I  may  strike  in  my 
owiL  defense,  and  if  sued  for  it  may  plead  son  assault  demesne^ 
or  that  it  was  the  plaintiff's  own  original  assault  that  occasioned 
it.    3  Bl.  Com.  120;  3  Broom  &  Had.  129  ;  vol.  2,  109,  Wait's  ed. 

Vol.  L— 43 


338  ASSAULT  AND  BATTERY. 

And  a  person  is  not  liable  for  an  unintentional  injury  resulting 
from  tlie  exercise  of  his  right  of  self-defense,  where  neither  neg- 
ligence or  foU}^  is  proved  against  him.  Paxton  v.  Boyer^  67  111. 
132  ;  S.  C,  16  Am.  Kep.  615.  Thus,  where  a  person  in  lawful 
self-defense  fires  a  pistol  at  an  assailant,  and  missing  him  wounds 
an  innocent  by-stander,  he  is  not  liable  for  the  injury,  if  guilty 
of  no  negligence.  Morris  v.  Piatt,  32  Conn.  75.  But  in  repelling 
an  assault,  the  force  employed  must  be  appropriate  in  kind 
and  suitable  in  degree.  See  Murray  v.  Boyne,  42  Mo.  472; 
Baldioin  v.  Hay  den,  6  Conn.  453  ;  Hazel  v.  Clark,  3  Harr.  (Del.) 
22 ;  Gregory  v.  Hill,  8  Term.  R.  299 ;  Gallagher  v.  State,  3 
Minn.  270  ;  Taylor  v.  Olendening,  4  Kans.  524.  Thus,  as  a  gen- 
eral rule,  the  law  will  not  justify  a  man  who  repels  a  blow  with 
the  fist,  by  stabbing  his  assailant ;  but  whether  or  not  such 
stabbing  amounts  to  self-defense,  depends  upon  the  nature  and 
violence  of  the  assault  thus  repelled.  Moyd  v.  State,  36  Ga.  91. 
And  in  an  action  for  an  assault  by  shooting,  it  was  held  that  a 
man  who  is  assaulted  under  such  circumstances  as  authorize  a 
reasonable  belief  that  the  assault  is  made  with  a  design  to  take 
his  life,  or  inflict  extreme  bodily  injury,  will  be  justified  if  he 
kill,  or  attempt  to  kill,  his  assailant.  Morris  v.  Piatt,  32  Conn. 
75.  So,  the  degree  of  force  which  may  be  employed  in  repelling 
the  assault  depends  to  some  extent  upon  the  known  character  of 
the  assailant,  whether  peaceable  or  quarrelsome.  Harrison  v. 
Harrison,  43  Vt.  417.  It  is  not  a  man's  belief,  simply,  that  he 
will  be  struck,  that  will  justify  him  in  striking  first,  but  this 
belief  founded  on  reasonable  grounds  of  apprehension.  State  v. 
Bryson,  1  Wins.  (N.  C.)  No.  2,  86.  And  a  person  who  seeks  a 
fight,  or  provokes  another  to  strike  him,  cannot  justify  a  blow  on 
the  ground  of  self-defense.   Id.      Watrous  v.  Steel,  4  Vt.  629. 

§  3.  Defense  of  another.  The  right  to  repel  an  assault  by  force 
is  not  restricted  to  the  defense  of  one's  own  person,  but  also  ex- 
tends to  the  mutual  and  reciprocal  defense  of  each  other  by 
husband  and  wife,  parent  and  child,  master  and  servant.  2  Broom 
&  Had.  Com.  (Wait's  notes)  2  ;  Hathaway  v.  Rice,  19  Vt.  102. 
But  it  is  held  that  a  son  can  justify  an  assault  and  battery  in 
defense  of  his  father  only  where  the  latter  was  first  assailed, 
and  was  resisting  the  attack  when  the  former  interfered ;  and 
only  to  the  extent. of  such  force  as  may  be  necessary  for  the 
father's  defense,     OUer  v.  Neal,  1  Houst.  (Del.)  449. 

To  justify  an  assault  by  the  father,  in  defense  of  his  son,  it  is 
sufiicient  if  the  danger  to  the  latter  is  such  as  to  induce  a  person 


ASSAULT  AND  BATTERY.  339 

exercising  a  reasonable  judgment  to  interfere,  in  order  to  pre- 
vent the  consummation  of  the  injury.  Hill  v.  Rogers^  2  Iowa.  67. 
That  a  person  may  lawfully  interfere  in  behalf  of  a  stranger,  and 
employ  a  reasonable  amount  of  force  to  protect  him  from  unlaw- 
ful violence,  thus  avoiding  a  breach  of  the  peace.  See  Mellen  v. 
Thompson,  32  Vt.  407. 

§  4.  Defense  of  land,  house,  etc.  The  rightful  owner  of  a  house 
or  lands,  being  in  the  peaceable  possession  thereof,  and  having 
the  right  to  the  possession,  will  be  justified  in  using  all  necessary 
force  to  defend  his  possession  against  any  forcible  attempt  made 
to  expel  him.  Gregory  v.  Hill,  8  T.  R.  299 ;  Corey  v.  The  Peo- 
ple, 45  Barb.  262  ;  Parsons  v.  Brown,  15  id.  590.  And  the  son 
of  the  owner,  acting  under  the  lattei-'s  authority,  has  likewise 
the  same  right.  TrlbUe  v.  Frame,  7  J.  J.  Marsh.  (Ky.)  599,  617. 
So  one  who  has  rented  a  house,  as  tenant  of  the  owner,  and 
acts  under  him  in  entering  it,  possesses  the  same  right  to  use 
force  in  keeping  the  possession  that  the  owner  has.  Corey  v. 
The  People,  45  Barb.  262.  And  mechanics  who  are  in  charge  of 
a  house  which  they  are  engaged  in  building,  have  a  right  to 
gently  remove  persons  coming  into  the  building  without  author- 
ity. United  States  v.  Bartle,  1  Crancli  (C.  C),  236.  But  one 
having  a  right  to  enter  on  land  and  make  improvements,  not 
interfering  with  the  tenant's  farming  operations,  cannot  be' for- 
cibly expelled  until  he  actually  does  so  interfere.  McAuley  v. 
State,  3  Iowa,  435.  And  a  tenant  iu  common  has  no  right  to 
inflict  a  battery  upon  one  who  enters  upon  the  land  under  the 
authority  of  the  co-tenant ;  and,  in  this  respect,  there  is  no  dis- 
tinction between  the  co-tenant  and  one  entering  with  him,  and 
under  his  authority.  Cansee  v.  Anders,  4  Dev.  &  B.  L.  (N.  C.) 
246 ;  and  see  Commonwealth  v  Lakeman,  4  Gush.  (Mass.)  597. 

It  has  been  held,  however,  that  where  A  gives  B  verbal  per- 
mission "to  dig  and  carry  away  ore,"  and  B  assigns  the  license 
to  C,  who  enters  forcibly  into  the  premises  of  A,  the  latter  being 
at  the  time  the  owner  of  the  freehold,  and  w^arning  C  not  to  at- 
tempt to  enter,  C  is  a  trespasser,  and  may  be  resisted  by  A  with 
all  tlie  force  requisite  to  protect  his  possession.  Riddle  v.  Brown, 
20  Ala.  412. 

If  a  person  enters  a  house  with  force  and  violence,  the  person 
whose  house  is  entered  may  justify  turning  him  out  by  force, 
without  making  a  previous  request  to  him  to  depart  {Tullay  v. 
Reed,  1  Carr.  &  P.  6);  but  if  he  enters  quietly  he  must  be  requested 
to  leave,  and  upon  refusing  to  do  so,  the  owner  may  then  use 


340  ASSAULT  AND  BATTERY. 

as  much  force  as  is  necessary  to  put  him  out.  Id.;  State  v.  Wood- 
ward, 50  N.  H.  527.  So,  one  who  enters  an  office  for  the  transac- 
tion of  business  may  be  ejected  by  the  owner  or  agent,  after  a 
request  to  leave  and  a  refusal,  no  more  force  being  used  than  is 
necessary.  45  111.  367.  See  Esty  v.  Wilmot,  15  Gray  (Mass.),  168 ; 
Fierce  v.  Blcks,  34  Ga.  259  ;  Timotliy  v.  Simpson,  6  Carr.  &  P. 
500.  And  the  sale  of  a  ticket  of  admission  to  a  place  of  public 
amusement  is  held  to  be  only  a  revocable  license  to  the  pur- 
chaser to  enter  the  building  or  inclosure  to  attend  the  perform- 
ance ;  and,  if  revoked  before  the  performance  has  commenced, 
and  before  he  has  taken  the  seat  to  which  the  ticket  entitles  him, 
and  he  remains  therein  after  notice  of  the  revocation  and  refuses 
to  depart  upon  request,  he  becomes  a  trespasser,  and  may  be 
removed  by  the  use  of  such  force  as  is  necessary  for  the  purpose. 
Burton  v.  8c7ierpf\  1  Allen  (Mass.),  133  ;  McCrea  v.  Marsh,  12 
Gray  (Mass.),  211;  Woody.  Leadbltter,  13  Mees.  &  Wels.  838; 
Bridges  v.  Pur  cell,  1  Dev.  &  Bat.  (N.  C.)  492.  But,  where  one 
has  entered  the  house  of  another  in  a  peaceable  manner  and  for 
a  lawful  purpose,  he  may  rightfully  resist  any  attempt  to  eject 
him,  before  his  purpose  has  been  accomplished.  Thus,  where 
one  is  lawfully  in  the  house  of  another  for  the  purpose  of  serv- 
ing a  subpoena,  he  may  use  such  force  as  is  necessary  to  over- 
come any  resistance  he  may  meet  with  in  the  service  of  the 
subpoena,  being  liable  only  for  an  excess  of  violence  beyond 
what  is  necessary  to  overcome  the  resistance.  Hagar  v.  Dan- 
forth,  20  Barb.  16  ;  reversing  S.  C,  8  How.  435.  And  any  per- 
son has  a  right,  though  merely  from  motives  of  curiosity,  to 
enter  the  office  of  a  clerk  of  court,  when  open  for  public  busi- 
ness, and  remain  so  long  as  he  conducts  himself  properly,  and 
impedes  not  the  business ;  and  an  action  of  trespass  will  lie 
against  a  clerk  who  ejects  him  therefrom.  O Hara  v.  King, 
52  111.  303. 

It  is  as  unlawful  for  a  grown  son  or  daughter  to  create  a  dis- 
turbance in  the  family  as  for  a  mere  stranger ;  and  the  father,  as 
the  head  of  the  family,  may  as  rightfully  interpose  to  preserve 
the  good  order  and  propriety  of  his  household  in  the  one  case  as 
in  the  other,  and  such  interference  will  not  be  an  assault.  Smith 
V.  Slocum,  62  111.  354. 

§  5.  Defense  of  personal  property.  At  common  law,  the  owner 
of  goods  and  chattels  personal  may  justify  a  battery  of  a  per- 
son who  endeavors  wrongfully  to  dispossess  him  of  them.  3  Bl. 
Com.  4;   see  Gates  v.  Lounshury,  20  Johns.  427;  Scribner  v. 


ASSAULT  AND  BATTERY.  341 

Beacli^  4  Denio,  448;  and  if  the  goods  are  wrongfully  in  the 
possession  of  another,  the  owner,  or  his  servants  acting  by  his 
command,  may  justify  an  assault  in  order  to  repossess  himself 
of  them,  no  unnecessary  violence  being  used.  Id.  Blades  v. 
Higgs,  10  Com.  B.  (N.  S.)  713.  See  2  Broom  &  Had.  (Wait's 
Notes)  4,  note  429.  The  owner,  in  retaking  his  goods,  is -not  jus- 
tified in  using  such  force  or  violence  as  would  amount  to  a 
breach  of  the  peace.  Id.  Barnes  v.  Martin^  15  Wis.  240  ;  Andre 
V.  Johnson,  6  Blackf.  (Ind.)  375  ;  State  v.  Elliot,  11  N.  H.  540. 
And  it  is  held  that  the  defendant  cannot  justify  an  assault  on 
the  ground  that  he  had  an  irrevocable  license  to  enter  upon  the 
plaintiff's  land  for  the  purpose  of  removing  his  personal  prop- 
erty therefrom,  and  that  the  plaintiff  withstood  his  entry. 
CliurcMll  V.  Hulbert,  110  Mass.  42  ;  S.  C,  14  Am.  Rep.  578. 

§6.  Preserving  the  peace,  etc.  A  person  who  witnesses  an 
affray  may,  during  its  continuance,  and  for  the  purpose  of  put- 
ting a  stop  thereto,  lay  hands  upon  those  engaged  in  the  affray. 
Noden  v.  Johnson,  16  Q.  B.  218.  And  where  one  comes  up  in 
the  midst  of  an  affray,  and  forcibly  interferes  as  a  peacemaker  by 
separating  the  combatants  and  preventing  further  violence,  he  is 
not  guilty  of  a  trespass,  unless  he  uses  more  violence  than  is 
reasonably  necessary  for  the  purpose.  Timothy  v.  Simpson,  6 
Carr.  &  P.  500. 

The  master  of  a  vessel  has  an  undoubted  authority  to  punish 
corporeally  and  summarily  the  negligence  or  misconduct  of  his 
men.  United  States  v.  Hunt,  2  Story,  120  ;  Bangs  v.  Little, 
Ware,  506.  Yet  it  is  not  an  arbitrary  and  uncontrolled  author- 
ity, and  he  is  amenable  to  the  law  for  the  due  exercise  of  it. 
Brown  v.  Howard,  14  Johns.  119.  The  rule  on  the  subject  has 
thus  been  stated  :  "  By  the  common  law,  the  master  has  author- 
ity over  all  the  mariners  on  board  the  ship,  and  it  is  their  daty 
to  obey  his  commands  in  all  lawful  matters  relative  to  the  navi- 
gation of  the  ship,  and  the  preservation  of  good  order ;  and  in 
case  of  disobedience  or  disorderly  conduct,  he  may  lawfully  cor- 
rect them  in  a  reasonable  manner ;  his  authority,  in  this  respect, 
being  analogous  to  that  of  a  parent  over  a  child,  or  a  master 
over  his  apprentice  or  scholar.  Such  an  authority  is  absolutely 
necessary  to  the  safety  of  the  ship,  and  of  the  lives  of  the  per- 
sons on  board ;  but  it  behooves  the  master  to  be  very  careful  in 
the  exercise  of  it,  and  not  to  make  his  parental  power  a  pretext 
for  cruelty  and   oppression."     Abb.   on   Ship.    125.     And   see 


342  ASSAULT  AND  BATTERY. 

United  States  v.  Freeman,  4  Mason,  512 ;  Fuller  v.  Colby,  3 
Woodb.  &  Minot,  13  ;  TJiompson  v.  BuscJi,  4  Wash.  (C.  C)  340. 

Except  in  the  case  of  mariners  on  board  ship,  or  in  the  case  of 
bound  apprentices,  a  master  has  no  lawful  authority  to  chastise 
his  hired  servant,  otherwise  than  by  words  and  remonstrance ; 
and  if  he  beat  him,  though  moderately,  by  way  of  correction,  it 
is  good  ground  for  the  servant's  departure,  and  he  may  support 
an  action  against  the  master  for  the  battery.  Winstone  v.  Linn, 
1  B.  &  C.  469  ;  Mathews  v.  Terry,  10  Conn.  455  ;  Newman  v. 
Bennett,  2  Chit.  195,  So  a  man  has  no  lawful  authority  to  beat 
his  wife  {FulgTiam  v.  State,  46  Ala.  143 ;  People  v.  Winters,  2 
Park.  [N.  Y.]  10),  even  though  she  be  drunk  or  insolent.  Com- 
monwealth V.  Thompson,  108  Mass.  461.  But  he  may  defend 
himself  against  her,  and  may  restrain  her  from  acts  of  violence 
toward  himself  or  toward  others  {People  v.  Winters,  2  Park. 
[N.  Y.]  10) ;  and  an  action  for  an  assault  and  battery  will  not  lie 
by  a  feme  co'Gert  against  her  husband.  LongendyTce  v.  Longen- 
dylce,  44  Barb.  366. 

A  schoolmaster  is  justified  in  the  exercise  of  that  amount  of 
restraint  toward  a  pupil  which  is  necessary  to  answer  the  pur- 
poses of  his  employment ;  and  he  may  lawfully  resort  to  the 
use  of  as  much  force  as  may  be  necessary  to  remove  a  re- 
fractory scholar  from  the  school,  who  refuses  to  leave  on  being 
requested  to  do  so.  State  v.  Williams,  27  Vt.  755.  But  the 
power  to  exercise  corporal  punishment  must  not  be  used  as  a 
pretext  for  cruelty  and  oppression.  The  cause  must  be  sufficient, 
the  instrument  suitable,  and  the  manner  and  extent  of  the  correc- 
tion, and  tbe  temper  in  which  it  is  inflicted,  should  be  distin- 
guished with  the  kindness,  prudence,  and  propriety  becoming  the 
station.  Cooper  v.  McJunkin,  4  Ind.  290  ;  Gardner  v.  State,  id. 
632  ;  see  Lander  v.  Seamr,  32  Vt.  114  ;  Commonwealth  v.  Ran- 
dall, 4  Gray  (Mass.),  36. 

A  father  has  a  right  to  direct  which  of  the  studies  taught  in  a 
public  school  shall  be  pursued  by  his  infant  child  who  attends  as 
a  scholar;  and,  if  a  teacher  who  has  notice  of  the  father's  direc- 
tion, requires  him  to  pursue  other  studies,  and  whips  him  for 
not  doing  so,  he  will  be  guilty  of  an  assault  and  battery.  3Ior- 
row  V.  Wood,  35  Wis.  59  ;  S.  C,  17  Am.  Rep.  471. 

§  7.  ProTOcation.  An  assault  is  sufficient  to  justify  a  blow, 
unless  the  battery  be  excessive.  Hazel  v.  Clark,  3  Harr.  (Del.) 
22  ;  Dale  v.  Wood,  7  Moore,  33.  But  no  words  of  provocation, 
however  angry  and  irritating,  will  justify  an  assault  and  battery. 


ASSAULT  AND  BATTERY.  343 

Cusliman  v.  My  an,  1  Story,  91 ;  TJwmpson  v.  Mjimma,  21  Iowa, 
Q5.  And  although  a  man  assaulted  in  his  own  house  need  not 
retreat,  but  may  use  any  degree  of  force  or  violence  necessary  for 
his  protection,  yet,  even  here,  mere  words,  however  violent,  will 
not  furnish  a  justifiable  cause  for  an  attack.  State  v.  Martin^  30 
Wis.  216.  Words  of  provocation  may,  however,  go  in  mitigation 
of  damages.  Waters  v.  Brown,  3  A.  K.  Marsh.  (Ky.)  559 ;  Murray 
V.  Boyne,  42  Mo.  472  ;  Shorter  v.  People,  2  N.  Y.  (2  Comst.)  193. 
But,  to  entitle  the  defendant  to  give  evidence  of  provocation 
in  mitigation  of  damages,  the  provocation  must  be  so  recent  and 
immediate  as  to  induce  a  presumption  that  the  violence  done 
was  committed  under  the  immediate  influence  of  the  feelings  and 
passions  excited  by  it.  Id.;  Coxe  v.  Whitney^  9  Me.  531 ;  LeeY. 
Woolsey,  19  Johns.  319  ;  Barry  v.  Ingles,  2  Hayw.  (N.  C.)  102. 

§  8.  Exi)ulsioii  by  innkeepers.  An  inn  is  a  public  house  of 
entertainment  for  all  who  choose  to  visit  it;  and  the  innkeeper 
is  obliged  to  entertain  and  furnish  all  travelers  of  good  conduct 
and  means  of  payment  with  what  they  may  have  occasion  for 
as  such  travelers,  whilst  on  their  way.  Pin'kerton  v.  Wood- 
ward, 33  Cal.  557 ;  Commonwealth  v.  Mitchell,  1  Phil.  (1  Penn.)  63. 
But,  if  an  individual  has  entered  a  public  inn,  and  his  presence 
is  disagreeable  to  the  proprietor  or  his  guests,  he  has  a  right  to 
request  the  person  to  depart;  and  if  he  refuses,  the  innkeeper 
has  the  right  to  lay  his  hands  gently  upon  him,  and  lead  him 
out,  and  if  resistance  is  made,  to  emplo}^  sufficient  force  to  put 
him  out.  And  for  so  doing  he  can  justify  his  conduct  on  a  prose- 
cution for  assault  and  battery.  Id.;  S.  C,  2  Pars.  Sel.  Cas.  (Penn.) 
431;  Howell  v.  Jackson,  6  Carr.  &  P.  723 ;  Webster  v.  Watts,  11 
Q.  B.  311  ;  Markham  v.  Brown,  8  N.  H.  523.     See  Inn-keepers. 

§  9.  Removing  from  religious  meetings.  A  religious  society 
may  prescribe  such  rules  as  they  think  proper  for  preserving 
order  while  assembled  for  public  worship  ;  and  a  person  disturb- 
ing a  religious  meeting,  and  interrupting  its  order  and  decorum, 
may  be  removed  therefrom  by  the  application  of  force  sufficient 
for  that  purpose.  McLain  v.  Matlock,  7  Ind.  525  ;  Beckett  v. 
Lawrence,  7  Abb.  (N.  Y.)  403.  And  to  justify  the  application 
of  force  for  the  removal  of  a  person  interrupting  the  order  and 
decorum  of  such  meeting,  it  is  not  necessary  to  show  that  the 
disturbance  was  willful.  Wall  \.  Lee,  34  N.  Y.  (7  Tiff.)  141; 
Ballard  v.  Bond,  1  Jur.  7.  But  the  offender  sliould  be  requested 
to  retire,  before  the   application  of  force  for  his  removal.  Id. 


344  ASSAULT  AND  BATTERY. 

§  10.  Ejecting  from  public  conveyances.  A  person,  who  un- 
reasonably refuses  to  pay  his  fare  on  a  railroad  train,  may  be 
ejected  forthwith,  without  being  taken  to  a  regular  station. 
McClure  v.  FhlladelrpMa^  etc.,  JR.  R.  Co..,  34  Md.  532  ;  see  Fink 
V.  Albany,  etc.,  E.  R.  Co.,  4  Lans.  (N.  Y.)  147.  So,  where  a  rail- 
road or  steamboat  company  have  appointed  a  superintendent 
with  authority,  by  himself  and  his  assistants,  to  have  charge  of 
the  depot  and  manage  its  concerns,  it  is  incident  to  his  authority 
to  exclude,  or  direct  the  exclusion  of  j^ersons  who  persist  in  vio- 
lating the  reasonable  regulations  prescribed,  and  thereby  inter- 
rupt the  officers  and  servants  of  the  company  in  the  discharge 
of  their  respective  duties,  or  annoy  passengers.  Commonwealth 
V.  Power,  7  Mete.  (Mass.)  726;  Stephen  v.  ^mith,  29  Vt.  160; 
Jencks  v.  Coleman,  2  Sumner,  221.  But  no  greater  force  should 
be  used  than  is  necessary  for  the  purpose,  id.;  and  the  right  of  a 
railway  conductor  to  eject  a  person  from  the  cars  for  not  paying 
his  fare  upon  request  to  do  so,  must  be  exercised  with  regard  to 
the  particular  circumstances  of  the  case.  See  Illinois,  etc.,  R.  R. 
Co.  V.  Sutton,  53  111.  397;  Mobile,  etc.,  R.  R.  Co.  v.  Mc Arthur, 
43  Miss.  180.  Thus,  a  railroad  company  may  be  held  liable  in 
damages  for  forcibly  expelling  a  person  while  a  train  is  in  motion, 
and  it  is  no  defense  that  such  person  was  not  rightfully  on  the 
train.  Law  v.  Illinois,  etc.,  R.  R.  Co.,  32  Iowa,  534  ;  Samford 
V.  Eighth  Avenue  R.  R.  Co.,  23  N.  Y.  (9  SmithJ  343 ;  Eline  v. 
Central,  etc.,  R.  R.  Co.,  39  Cal.  587 ;  Rounds  v.  Delaware,  etc., 
R.  R.  Co.,  3  Hun  (N.  Y.),  329  ;  S.  C,  5  Pars.  475  ;  see  Jackson 
V.  Second  Avenue  R.  R.  Co.,  47  N.Y.  (2  Sick.)  274  ;  S.  C,  7  Am. 
Rep.  448.  For  a  full  statement  of  the  law  on  this  subject,  see 
Railways  and  Common  Carriers. 

§  11.  Consent.  An  assault  implies  force  upon  one  side,  and 
repulsion,  or,  at  least,  want  of  assent,  upon  the  other.  An 
assault  upon  a  consenting  party  would,  therefore,  be  a  legal 
absurdity.  Smith  v.  State,  12  Ohio  St.  466  ;  Duncan  v.  Common- 
wealth, 6  Dana  (Ky.),  595  ;  see  ante,  36,  146.  It  has  accordingly 
been  held  that,  in  an  action  by  husband  and  wife  for  an  assault 
and  battery  on  her,  it  is  a  good  defense  that  the  act  complained 
of  was  committed  with  the  consent,  and  at  the  request  of  the  wife. 
Pillow  V.  Bushnell,  5  Barb.  156.  And  where  one  was  whipped 
at  his  own  request,  to  save  him,  as  was  supposed,  from  punish- 
ment for  felony,  it  was  held,  that  the  act  was  not  punishable,  if 
done  without  malicious  or  revengeful  motives.  State  v.  Beckt 
1  Hill  (S.  C),  363.     But  a  party  may  recover  for  an  assault  and 


ASSAULT  AND  BATTERY.  345 

battery,  notwitlistanding  lie  and  liis  adversary  fought  by  mutual 
consent.  Logan  v.  Austin,  1  Stew.  (Ala.)  476  ;  Bell  v.  Hansley, 
3  Jones'  L.  (N.  C.)  131  Stout  v.  Wren,  1  Hawks.  (N.  C.)  420. 

§  12.  Damages  in  general.  In  actions  for  assault  and  battery 
there  is  said  to  be  no  precise  rule  by  which  the  damages  may  be 
measured  ;  but  that  the  same  must  be  left  to  the  discretion  of  a 
jury.  CommonwealtJi  v.  Sessions  of  Norfolk,  5  Mass.  435,  437. 
This  discretion  is  exercised  by  duly  weighing  all  the  circum- 
stances of  the  case,  and  considering  the  state,  degree,  quality, 
trade  and  profession,  as  well  of  the  party  injured  as  of  him 
who  did  the  injury.  Co;ffi7i  v.  Cofin,  4  Mass.  41.  And  see  Cox 
V.  VanderMeed,  21  Ind.  164  ;  Slatert  v.  Bink,  18  111.  527 ;  Bruns- 
wick V.  Slowman,  8  C.  B.  317 ;  Wadsworth  v.  Treat,  43  Me.  163. 
The  plaintiff  in  such  an  action,  without  alleging  special  damages, 
is  not  confined  to  the  recovery  of  merely  nominal  damages,  but 
may  recover  such  general  damages  as  he  may  prove  to  have  re- 
sulted from  the  injury.  Andrews  v.  Stone,  10  Minn.  72.  In 
estimating  the  damages,  personal  suffering,  as  well  as  medical 
expenses  and  the  direct  pecuniary  loss,  are  proper  subjects  for 
compensation  {Ransom  v.  N.  Y.  &  Erie  R,  R.  Co.,  15  N.  Y. 
[1  Smith]  415  ;  Smith  v.  Holcomh,  99  Mass.  552  ;  PennsyUania, 
etc. ,  Ca7ial  Co.  v.  Graham,  63  Penn.  St.  290  ;  Smith  v.  Overhy,  30 
G-a.  241  ;  Klein  v.  Tliompson,  19  Ohio  St.  569) ;  and  it  is  held 
that  the  expenses  of  the  litigation  may  also  be  taken  into  con- 
sideration. Cleveland,  etc.,  R.  R.  Co.  v.  Bartram,  11  Ohio  St. 
457 ;  New  Orleans,  etc.,  R.  R.  Co.  v.  AlTbritton,  38  Miss.  242 ; 
Noyes  v.  Ward,  19  Conn.  250.  So  it  is  proper  for  the  jury  to 
take  into  consideration  any  natural  and  necessary  consequences 
resulting  to  the  plaintiff  from  the  act  of  violence,  and  to  allow 
damages  therefor.  Fetter  v.  Beale,  1  Ld.  Raym.  339  ;  Moor  v. 
Adams,  2  Chit.  198  ;  Slater  v.  Rink,  18  111.  527.  The  mental  suf- 
fering of  the  plaintiff  from  the  insult  and  indignity  of  the  de- 
fendant's blows,  may  likewise  be  considered  by  the  jury.  Smitli 
V.  Holcomh,  99  Mass.  552 ;  Wadsworth  v.  Treat,  43  Me.  163 ; 
Ford  V.  Jones,  62  Barb.  484.  And  even  where  there  is  no  insult 
or  indignity,  mental  suffering  may  be  ground  of  damage.  Can- 
ning V.  Williamstown,  1  Gush.  (Mass.)  451. 

§  13.  Aggravation  of  damages.  In  an  action  for  an  assault  and 
battery,  the  plaintiff  usually,  and  as  a  general  rule,  has  a  right 
to  expect  a  fair  compensation  in  damages  for  the  injury  really 
sustained ;  but,  in  addition  to  this,  the  jury  may  sometimes  be 
called  upon  to  give  exemplary  damages  by  way  of  punishment 

Vol.  I.  — 44 


346  ASSAULT  AND  BATTERY. 

where  it  appears  that  the  defendant  was  actuated  by  malice  and 
a  total  disregard  of  the  laws,  and  the  plaintiff  was  in  no  wise  to 
blame.  Causee  v.  Anders,  4  Dev.  &  B.  L.  (N.  C.)  246 ;  3£cNa- 
mara  v.  King,  7  111.  432  ;  Wilson  v.  Middleton,  2  Cal.  54 ;  Guen- 
gericli  v.  Smith,  37  Iowa,  587.  Thus,  where  at  the  close  of  a 
'  trial,  and  immediately  upon  the  adjournment  of  the  court  there- 
after, in  the  court-room  and  in  the  presence  of  a  large  number 
of  persons,  one  of  the  parties  to  the  suit  deliberately  spat  in  the 
face  of  the  other,  it  was  held,  in  an  action  brought  by  the  in- 
jured party  against  the  perpetrator  of  the  act,  that  the  case  was 
a  most  fit  one  for  the  award  of  punitive  damages,  and  it  ap- 
pearing that  the  defendant  was  a  wealthy  man,  a  verdict  for 
$1,000  was  regarded  as  not  excessive.  Alcorn  v.  Mitcliell., 
63  111.  553.  So,  generally,  a  jury  is  authorized  to  give 
exemplary  damages,  where  the  elements  of  fraud,  malice, 
gross  negligence,  or  oppression,  mingle  in  and  form  part  of  the 
cause  Of  action.  Albert  Wiley  v.  KeoTcuk,  6  Kans.  94  ;  Malone 
V.  Murphy,  2  id.  250 ;  Gore  v.  Chadwick,  6  Dana  (Ky.),  477 ; 
West  V.  Forrest,  22  Mo.  344 ;  New  Orleans,  etc.,  R.  R.  Co.  v. 
Statham,  42  Miss.  607;  Baltimore  R.  R.  Co.  v.  Breinig, 
25  Md.  378 ;  Etchherry  v.  Lemelle,  2  Hilt.  (N.  Y.)  40 ; 
Klingman  v.  Holmes,  54  Mo.  304.  And  such  damages  may  be 
awarded  even  though  the  defendant  is  liable  to  be  punished 
criminally.  Wilson  v.  Middleton,  2  Cal.  54  ;  or  has  been  already 
so  punished.  Hoadley  v.  Watson,  45  Vt.  289 ;  Jefferson  v. 
Adams,  4  Harr.  (Del.)  321;  Phillips  v.  Kelly,  29  Ala.  628; 
Roberts  v.  Mason,  10  Ohio  St.  277.  But  it  is  otherwise  in  Indi- 
ana, in  cases  of  malicious  trespass.  Butler  v.  Mercer,  14  Ind. 
479.  And  in  New  Hampshire,  damages  recoverable  in  a  civil  ac- 
tion for  assault  and  battery,  must  be  founded^  on  the  idea  of 
compensation  for  the  injury.  The  jury  may  allow  for  injury  to 
the  feelings  as  well  as  to  the  person.  But  to  go  beyond  all  ele- 
ments of  injury  to  the  plaintiff,  and  give  what  are  literally  puni- 
tive damages,  is  not  allowable.  Fay  v.  Parker,  53  N.  H.  342  ; 
see,  also,  Smith  v.  Pittsburgh,  etc.,  R.  R.  Co.,  23  Ohio  St.  10; 
Lucas  V.  Flinn,  35  Iowa,  9.  And  in  Mooney  v.  Kennett,  19  Mo. 
551,  it  was  held  that  an  instruction  allowing  "smart  money" 
in  case  of  assault  and  battery  was  erroneous. 

§  14.  Mitigation  of  damages. '  In  an  action  for  assault  and  bat- 
tery, it  is  a  general  rule,  that  abusive  and  insulting  language 
may  be  shown  in  evidence,  in  mitigation  of  damages,  when  it 
immediately  precedes  the  act  done,  so  as  naturally  to  provoke  it. 


ASSAULT  AND  BATTERY.  347 

Cushman  v.  Ryan,  1  Story,  91 ;  State  v.  QvAnn^  2  Mill.  Const. 
(S.  C.)  694;  Waters  v.  Brown,  3  A.  K.  Marsli.  (Ky.)  559  ;  Boone 
V.  /Si5«i^e,  31  Tex.  557 ;  Castner  v.  >S'Za'er,  33  N.  J.  (4  Yr.)  95  ; 
ante,  342,  §  7.  But  each  case  should  be  controlled  by  its  own 
peculiar  circumstances ;  and  it  is  said,  the  question  should  be, 
not  how  many  hours  have  elapsed  since  the  provocation  was 
given,  but  whether,  in  view  of  the  circumstances  of  the  case, 
the  party  has  had  a  reasonable  time  to  cool  his  blood.  Dolan 
V.  Pagan,  63  Barb.  73.  And  where  the  acts  done,  or  the  words 
spoken,  are  a  portion  of  a  series  of  provocations  frequently  re- 
peated and  continued  down  to  the  time  of  the  assault,  they  may 
be  proven.  Stetlar  v.  JVellis,  60  Barb.  524  ;  S.  C,  42  How.  (N. 
Y.)  163.  But  it  w^ould  seem  that  no  provocation,  amounting  to 
less  than  justification,  will  render  the  defendant  liable  in  less 
than  compensatory  damages.  Bircliard  v.  Booth,  4  Wis.  67 ; 
see  Dresser  v.  Blair,  28  Mich.  501.  And  circumstances  which 
amount  to  a  complete  justification  cannot  be  given  in  evidence 
in  mitigation  of  damages,  if  those  circumstances  could  have 
been  pleaded.      Watson  v.  Christie,  2  Bos.  &  Pul.  224. 

Evidence  of  declarations  of  the  plaintiff  respecting  the  de- 
fendant is  not  admissible  in  mitigation  of  damages,  unless  they 
are  shown  to  have  been  communicated  to  the  defendant.  Gaither 
V.  Blowers,  11  Md.  536.  And  where  husband  and  wife  join  in 
an  action  for  an  assault  on  the  wife,  no  words  or  acts  of  the  hus- 
band can  be  proved  in  mitigation  of  damages  unless  the  wife 
was  privy  to  them.    Everts  v.  Everts,  3  Mich.  580. 


348  ASSETS,  ADMINISTRATION  OF. 

CHAPTER  XIV. 

ASSETS,  ADMINISTRATION  OF. 
ARTICLE  I. 

GENERAL   RULES   RELATING   TO   ADMINISTRATION   OF. 

Section  1.  What  are  to  be  deemed  assets.  The  word  assets  is 
derived  from  the  French  word  assez^  which  means  sufficient,  or 
enough ;  and  it  formerly  signified  what  its  etymology  indicates : 
the  property  of  a  deceased  person  sufficient  to  pay  his  debts  and 
legacies.  But  the  word  is  no  longer  confined  to  this  original 
and  strictly  appropriate  meaning,  and  is  now  constantly  used  to 
signify  an^  property,  estate  or  fund  applicable  to  the  paj^ment 
of  debts,  though  quite  insufficient  in  amount  or  value  for  the 
purpose.  1  Burr.  Diet.  142,  143.  In  an  accurate  and  legal  sense, 
all  the  personal  property  of  the  deceased,  which  is  of  a  salable 
nature,  and  may  be  converted  into  ready  money,  is  deemed  assets. 
1  Broom  &  Had.  844,  n.  (Wait's  ed.);  2  Bl.  Com.  510 ;  1  Story's 
Eq.  Juris.,  §531.  But  in  a  larger  sense  the  real  and  personal 
property  of  the  deceased,  which,  either  in  the  hands  of  his  heir 
or  devisee,  or  of  his  executor  or  administrator,  is  chargeable 
with  the  payment  of  his  debts  and  legacies,  is  assets.  See  Id. ; 
1  Broom  &  Had.  847  (Wait's  ed.) ;  2  Bl.  Com.  244,  340 :  2  Steph. 
Com.  244,  note. 

§  2.  Legal  assets.  The  property  of  a  deceased  person,  which 
the  common  law  can  reach  for  the  purpose  of  satisfying  his 
creditors,  is  commonly  termed  legal  assets.  See  2  Lead.  Cas. 
Eq.  72,  78 ;  Farr  v.  Newman.,  4  T.  R.  621.  So,  legal  assets  have 
been  defined  as  those  portions  of  the  property  of  ^a  deceased  per- 
son of  which  his  executor  or  heir  may  gain  possession,  and  in 
respect  whereof  he  may  be  made  chargeable,  by  the  process  of 
the  ordinary  tribunals,  and  without  the  necessity  of  equitable 
interference.  Adams'  Eq.  252.  A  more  accurate  description 
claimed  for  them  is,  that  they  are  such  as  come  into  the  hands 
and  power  of  an  executor  or  administrator,  or  such  as  he 
is  intrusted  with  by  law,  virtute  officii^  to  dispose  of  in  the 
course  of  administration.  In  other  words,  whatever  an  execu- 
tor or  administrator  takes  qua  executor  or  administrator,  or  in 


ASSETS,  ADMINISTRATION  OF.  -349 

respect  to  his  office,  is  to  be  considered  legal  assets.  1  Story's  Eq. 
Juris.,  §551;  and  see  Attorney -General  v.  Brunning,  6  Jur.  (N. 
S.)  1083 ;  Deg  v.  Deg.,  2  P.  Wms.  416,  and  note  ;  Lovegrove  v. 
Cooper,  2  Sm.  &  Giff.  271.  Tliey  consist  of  the  personal  estate  of 
the  deceased,  to  which  the  executor  or  administrator  is  entitled 
by  virtue  of  his  office  (2  Lead.  Gas.  Eq.  78);  and  wherever  real 
estate  is  by  statute  made  liable  for  the  payment  of  the  debts  of 
the  deceased,  it  also  constitutes  legal  assets.  Id. ;  Goodchild  v. 
Terret,  5  Beav.  398.  But,  notwithstanding  such  statutory  pro- 
vision, it  is  held  that  a  devise  of  real  estate  for  the  payment  of 
the  testator's  debts  renders  the  estate  so  charged,  equitable  and 
not  legal  assets.  Charlton  v.  Wriglit,  12  Sim.  274  ;  2  Lead.  Gas. 
Eq.  82,  83. 

§  3.  Equitable  assets.  Equitable  assets  are  such  as  cannot  be 
reached  without  the  assistance  of  equity ;  or  they  are  those  por- 
tions of  the  property  which,  by  the  ordftary  rules  of  law,  are 
exempt  from  debts,  but  which  the  testator  has  voluntarily 
charged  as  assets,  or  which,  being  non-existent  at  law,  have 
been  created  in  equity.  Thus,  where  a  testator  devises'land  ta 
trustees,  to  be  sold  for  the  payment  of  debts,  the  assets  result- 
ing from  the  execution  of  the  trust  are  equitable  assets  upon  the 
plain  intent  of  the  testator,  notwithstanding  the  trustees  are  also 
made  his  executors  ;  for,  by  directing  the  sale  to  be  for  the  pay- 
ment of  debts  generally,  he  excludes  all  preferences,  and  the 
property  would  not  otherwise  be  liable  to  the  payment  of  simple 
contract  debts.  Benson  v.  Leroy,  4  Johns.  Gh.  651 ;  Bain  v. 
Sadler,  L.  R.,  12  Eq.  570  ;  Barker  v.  May,  9  Barn.  &  G.  489. 
And  the  same  principle  is  applicable,  where  the  testator  merely 
charges  his  lands  with  the  payment  of  his  debts.  Id.  See  2  Lead. 
Gas.  Eq.  81.  But  if  the  estate  be  of  an  equitable  nature,  and  be 
chargeable  with  debts,  the  fund  is  to  be  deemed  equitable  assets, 
unless  by  some  statute  it  is  expressly  made  legal  assets  ;  for  it 
cannot  be  reached  except  through  the  instrumentality  of  a  court 
of  equity.  And  it  is  stated,  as  a.  general  principle,  that  every 
thing  is  considered  as  equitable  assets,  which  the  debtor  has 
made  subject  to  his  debts  generally,  and  which,  without  his  act, 
would  not  have  been  subject  to  the  payment  of  his  debts  gener- 
ally. See  1  Story's  Eq.  Juris.,  §552;  2  Lead.  Gas.  Eq.  72,  81,  et  seq. 

The  doctrine  of  equitable  assets  was  introduced  at  an  early 
period  into  the  jurisprudence  of  the  United  States,  but  its  im- 
portance has  been  very  greatly  diminished  on  account  of  its 
adoption  and  incorporation  into  the  statute  law  of  most  of  the 


350  ASSETS,  ADMINISTRATION  OF. 

States.  And  even  in  tliose  States  where  the  doctrine  has  not 
been  recognized  by  statute,  the  sphere  of  its  practical  operation 
has  been  limited,  by  the  extension  of  legal  remedies,  to  all  the 
property  of  the  debtor  not  included  in  the  class  of  equitable 
assets.     See  Sperry's  Estate,  1  Ashm.  (Penn.)  347. 

It  should  be  remembered,  however,  that  the  adoption  of  equi- 
table principles  by  the  statute  law  does  not  weaken  their  force 
as  principles,  nor  render  them  inapplicable  in  cases  admitting 
of  their  application.  Torres  Estate,  2  Rawle  (Penn.),  250;  2  Lead. 
Gas.  Eq.  88.  In  the  absence  of  any  statutory  enactment,  the  rule 
is  recognized  that  a  charge  of  debts  by  will  upon  lands,  or  a 
devise  in  trust  for  the  payment  of  debts,  converts  the  whole  fund 
into  equitable  assets,  and  brings  it  within  the  equitable  principle 
of  equal  distribution.  Baclchouse  v.  Paiion,  5  Pet.  160  ;  Black 
V.  Scott,  2  Brock.  325:  Cloudas'  EoSr  v.  Adams,  4  Dana(Ky.), 
603  ;  Speed's  Ex'r  YrNelson's  Ex'r,  8  B.  Monr.  (Ky.)499.  See, 
also,  as  to  the  doctrine,  Benson  v.  Le  Boy,  4  Johns.  Ch.  651 ; 
3foses  V.  Murgatroyd,  1  id.  119  ;  Henderson  v.  Burton,  3  Ired. 
(N.  C.)'259. 

§  4.  Principles  of  distribution.  The  mere  change  of  the  fornm 
in  which  assets  are  distributed,  from  law  into  equity,  will  not 
vary  the  character  of  the  assets  nor  affect  the  order  of  their  dis- 
tribution. In  the  distribution  of  legal  assets,  courts  of  equity 
follow  the  same  rules  which  are  adopted  by  courts  of  law,  and 
give  the  same  priority  to  the  different  classes  of  creditors,  which 
is  enjoyed  at  law.  This  is  in  accordance  with  the  maxim,  Mqtii- 
tas  sequitur  legem.  See  ante,  152.  Atkinson  v.  Gray,  18  Jur. 
283  ;  Moses  v.  Murgatroyd,  1  Johns.  Ch.  119  ;  Purdy  v.  Doyle, 
1  Paige' sCh.  (N.  Y.)  558.  Especially  will  priorities  of  liens  be 
regarded.  lb. ;  Averill  v.  Loucks,  6  Barb.  (N.  Y.)  470  ;  Pascalls 
V.  Canfield,  1  Edw.  Ch.  (N.Y.)  201;  see  Wilder  v.  Keeler,  3  Paige's 
Ch.  (N.  Y.)  167 ;  Thompson  v.  Brown,  4  Johns.  Ch.  619  ;  2  Lead. 
Cas.  Eq.  88  (252). 

But,  in  respect  to  assets,  which  are  the  growth  of  equitable 
jurisdiction,  and  the  fruit  of  equitable  principles,  the  maxim  that 
equality  is  equity,  is  applicable  ;  and  such  assets  will  be  distrib- 
uted by  courts  of  equity  equally,  fxnd  pari  pas stc,  among  all  the 
creditors,  without  any  reference  to  the  priority  or  dignity  of  the 
debts.  lb.;  Ante,  155;  Beg  v.  Beg,  2  P.  Wms.  412,  416 ;  Wilsonv. 
Paul,  8  Sim.  63  ;  Bain  v.  Sadler,  L.  R.,  12  Eq.  570  ;  see  Codwise  v. 
Oelston,  10  Johns.  507.  If  the  fund  is  insufficient  to  pay  all  the 
creditors,  they  are  required  to  abate  in  proportion.     So,  if  lands 


ASSETS,  ADMINISTRATION  OF.  351 

and  other  property,  not  strictly  legal  assets,  are  charged  with 
the  payment  of  debts  and  legacies,  all  the  legatees  take  j)ari 
jpassu  ;  and  in  case  of  an  insufficiency  of  equitable  assets  (after 
payment  of  the  debts)  to  pay  all  the  legacies,  the  legatees  are 
required  to  abate  in  proportion,  unless  the  testator  has  otherwise 
directed.    Brown  v.  Brown,  1  Keen,  275 ;  1  Story's  Eq.  Juris., 

As  between  creditors  and  legatees,  the  former  are  entitled  to  a 
priority  and  preference ;  the  latter  taking  nothing  until  the 
debts  are  all  paid.  lb.;  Kidney  v.  OoussmaJcer,  12  Yes.  154  ;  see 
Freeman  v.  Okey,  3  Jones'  Eq.  (N.  C.)  473  ;  Elliot  v.  Posten,  4  id. 
433  ;  Sims  v.  Sims,  2  Stockt.  Ch.  (N.  J.)  158 ;  TerJiune  v.  Colton, 

2  id.  21. 

Where  the  assets  are  partly  legal  and  partly  equitable,  a  court 
of  equity  will  not  take  away  the  legal  preference  on  legal  assets, 
but  if  any  creditor  has  been  partly  paid  out  of  the  legal  assets, 
by  insisting  on  his  preference,  and  he  seeks  satisfaction  of  the 
residue  of  his  debt  out  of  the  equitable  assets,  he  will  be  post- 
poned till  all  the  other  creditors  not  possessing  such  a  prefer- 
ence have  received  out  of  such  equitable  assets  an  equal  propor- 
tion of  their  respective  debts.  2  Lead.  Gas.  Eq.  88  (252)  ;  Jloses 
V.  Murgatroyd,  1  Johns.  Ch.  119  ;  Deg  v.  Beg,  2  P.  Wins.  416; 
Cornish  v.  Willson,  6  Gill.  (Md.)  303.     And  see  Purdyv.  Boyle, 

I  Paige,  558  ;  Wilder  v.  Keeler,  3  id.  165. 

Very  generally,  by  statute,  in  the  United  States,  and  now  also 
in  England,  the  rule  of  law  is  that  all  the  property  of  the  de- 
ceased, real  and  personal,  is  liable  for  his  debts  ;  and  the  follow- 
ing is  the  order  of  administering  assets  for  creditors  in  equity, 
unless  a  different  order  is  prescribed  by  statute :  1.  The  per- 
sonal estate  not  specifically  bequeathed  ;  2.  Real  estate  devised 
or  ordered  to  be  sold  for  the  payment  of  debts ;  3.  Real 
estate  descended  but  not  charged  with  debts  ;  4.  Real  estate 
devised,  charged  generally  with  the  payment  of  debts ;  5.  Gen- 
eral pecuniary  legacies  pro  rata  ;  6.  Real  estate  devised,  not 
charged  with  debts.  See,  generally,  2  Lead.  Gas.  Eq.  72  ;  Adams 
V.  Brackett,  5  Mete.  (Mass.)  280  ;  Livingston  v.  NewkirTc,  3  Johns. 
Gh.  312;  Hays  v.  Jackson,  6  Mass.  149;  Harvey  v.  Steptoe,  17 
Gratt.  (Va.)  289 ;  Shorr  v.  McCameron,  11  Serg.  &  R.  252  ;  ^Vard 
V.  Ward,  15  Pick.  511 ;  1  Bouv.  Diet.  155 ;  Chase  v.  Lockerman, 

II  Gill  &  J.  (Md.)  185;  Schermerhorn  v.  Barhydt,  9  Paige,  29  ; 
Livingston  v^  Livingston,  3  Johns.  Gh.  148  ;  Stroud  v.  Barnett, 

3  Dana  (Ky.),  394  ;  Gallagher's  Appeal,  48  Penn.  St.  122  ;  Salis- 


352  ASSETS,  ADMINISTRATION  OF. 

hury  V,  Morss,  7  Lans.  (N.  Y.)  359  ;  House  v.  Raymond^  3  Hun 
(N.  Y.),  44 ;  S.  C,  5  N.  Y.  S.  C.  (T.  &  C.)  248. 

§  5.  Marslialiug  assets.  In  the  sense  of  a  court  of  equity,  tlie 
marshaling  of  assets  is  such  an  arrangement  of  tlie  different 
funds  under  administration  as  shall  enable  all  the  parties  having 
equities  thereon  to  receive  their  due  proportions,  notwithstanding 
any  intervening  interests,  liens,  or  other  claims  of  particular 
persons  to  prior  satisfaction  out  of  a  portion  of  these  funds.  1 
Story's  Eq.  Juris.,  §  558.  The  principle  upon  which  the  court 
proceeds  is,  that  a  creditor  having  his  choice  of  two  funds  ought 
to  exercise  his  right  of  election  in  such  a  manner  as  not  to  injure 
other  creditors,  who  can  resort  to  only  one  of  these  funds.  But 
if  contrary  to  equity,  he  should  so  exercise  his  legal  rights  as  to 
exhaust  the  fund  to  wliich  alone  other  creditors  can  resort,  then 
those  other  creditors  will  be  placed  by  a  court  of  equity  in  his 
situation,  so  far  as  he  has  applied  their  fund  to  the  satisfaction 
of  his  claim.  Alston  v.  Mwnford,  1  Brock.  266.  This  principle 
is  well  settled  in  the  jurisprudence  of  this  country  as  well  as  in 
that  of  England  (see  Goss  v.  Lester,  1  Wis.  43  ;  Kendall  v.  Neio 
Eng.  Co.,  13  Conn.  394 ;  Piatt  v.  St.  Clair,  6  Ham.  [Ohio]  233  ; 
Russell  V.  Howard,  2  McLean,  489  ;  Evertson  v.  BootTi,  19  Johns. 
486)  ;  and  it  is  not  confined  to  the  case  of  creditors,  but  is  also 
applied  to  other  persons  standing  in  a  similar  predicament.  Dorr 
V.  Shaw,  4  Johns.  Ch.  17  ;  CTieeseborough  v.  Millard,  1  id.  412  ; 
OppenheimerY.  Walker,  3  Hun  (N.Y.),  30;  S.  C,  5  N.  Y.  S.  C.  (T.  & 
C.)  325.  It  will  not,  however,  be  applied  where  it  would  work 
injustice  to  the  creditor,  or  other  party  in  interest,  having  a  title  to 
the  double  fund,  or  where  it  would  operate  unjustly  to  the  com- 
mon debtor.  See  Averill  v.  Loucks,  6  Barb.  470.  Nor  is  it  applied  . 
in  favor  of  persons  who  are  not  common  creditors  of  the  same 
common  debtor,  except  upon  some  special  equity.  Ex  parte 
Kendall,  17  Ves.  514,  520  ;  Lloyd  v.  Galhraith,  32  Penn.  St.  103. 
It  applies,  however,  during  the  life-time  of  the  debtor,  as  well  as 
in  the  administration  of  his  estate  after  his  death  {Hawley  v. 
Mancius,  7  Johns.  Ch.  174,  184  ;  Dorr  v.  Shaw,  4  id.  17  ;  2  Lead. 
Cas.  Eq.  71  [194] ) ;  though  it  has  been  said  that  courts  of  equity 
have  no  right  to  marshal  the  assets  of  a  person  who  is  alive. 
See  Lacarri  v.  Merlins,  1  Ves.  Sen.  312. 

A  few  cases  will  clearly  illustrate  the  application  of  the  gen- 
eral principle.  Thus,  if  a  specialty  creditor,  whose  debt  is  a 
lien  on  the  real  estate,  receive  satisfaction  out  of  the  personal 
assets,  a  simple  contract  creditor  (who  has  no  claim  except  upon 


ASSETS,  ADMINISTRATION  OF.  353 

those  personal  assets)  shall  in  equity  stand  in  the  place  of  the 
specialty  creditor  against  the  real  assets,  so  far  as  the  latter  shall 
have  exhausted  the  personal  assets  in  payment  of  his  debt. 
Clifton  V.  Bm%  1  P.  Wms.  679,  note ;  CheeseborougTi  v.  Millard, 

1  Johns.  Ch.  409,  413.  And  the  same  principle  is  applicable  to 
the  case  of  a  mortgagee  who  exhausts  the  personal  estate  in  the 
payment  of  his  debts.  The  simple  contract  creditors  will  be 
allowed  to  stand  in  the  place  of  the  mortgagee,  in  regard  to  the 
real  estate  bound  by  the  mortgage.  Aldrich  v.  Cooper,  8  Yes.  382 ; 

2  Lead.  Gas.  Eq.  205,  et  seq.  See  Putnam  v.  Russell,  17  Yt.  54  ; 
Lyman  v.  Lyman,  32  id.  79  ;  Lloyd  v.  OalbraitJi,  32  Penn.  St. 
103  ;  Ooss  V.  Lester,  1  Wis.  43,  54 ;  Oppenheimer  v.  Walker,  3 
Hun  (N.  Y.),  30;  S.  C,  5  N.  Y.  S.  C.  (T.  &  C.)  325.  So,  the 
bounty  of  the  testator  entitles  a  legatee  to  marshal  the  assets ; 
and  the  choice  of  the  creditors,  to  proceed  against  the  personal 
estate,  instead  of  the  real  estate  descended,  shall  not  preclude 
the  payment  of  the  legacy.  Post  v.  Mackall,  3  Bland.  (Md.) 
486.  And  see  Mollan  v.  Griffith,  3  Paige's  Ch.  (N.  Y.)  402 ; 
Rice  V.  Harheson,  2  N.  Y.  S.  C.  (T.  &  C.)  4  ;  Brown  v.  James, 
1  Strobh.  Eq.  (S.  C.)  424  ;  Rohards  v.  WortJtam,  2  Dev.  Eq. 
(N.  C.)  173;  Chase  v.  Lockerman,  11  GiU  &  J.  (Md.)  186  ;  2  Lead. 
Gas.  Eq.  215,  et  seq.  And  marshaling  is  also  allowed  in  favor 
of  a  widow's  paraphernalia.  See  2  Bl.  Gom.  436.  Thus,  if 
the  paraphernalia  had  been  actually  taken  by  creditors  in 
satisfaction  of  their  debts,  the  widow  will  be  allowed  to  stand 
in  their  place,  and  the  assets  will  be  marshaled  so .  as  to  give 
her  a  compensation  pro  tanto.  Aldrich  v.  Cooper,  8  Yes. 
397;  Incledon  v.  Northcote,  3  Atk.  438;  2  Lead.  Gas.  Eq. 
69.  So,  heirs  at  law  and  devisees  are,  in  a  variety  of  cases, 
entitled  to  a  marshaling  of  assets  in  their  favor;  as,  where 
an  heir  or  devisee  of  real  estate  is  sued  by  a  bond  creditor,  he 
may,  in  many  cases,  be  entitled  to  stand  in  the  place  of  such 
specialty  creditor  against  the  personal  estate  of  the  deceased  tes- 
tator or  intestate.  Gallon  v.  Hancock,  2  Atk.  424.  And  see  this 
subject  fully  discussed,  2  Lead.  Gas.  Eq.  215,  et  seq. 

Inclosing  this  subject  it  may  be  observed,  that  generally  in 
this  country  courts  of  probate  have  jurisdiction  over  the  admin- 
istration of  estates,  and  courts  of  equity  do  not  ordinarily  inter- 
fere, except  in  aid  of  the  former.  It  would  seem,  however,  that 
in  some  of  the  States,  courts  of  equity  have  concurrent  jurisdic- 
tion with  courts  of  probate,  over  many  matters  connected  with 
the  settlement  of  estates.    See  Clarke  v.  Johnston^  2  Stockt.  (N. 

Vol.  L  — 45 


354  ASSETS,  ADMINISTRATION  OF. 

J.)  287 ;  Seymour  v.  Seymour,  4  Johns.  Ch.  409.  In  England, 
when  a  matter  of  administration  of  an  estate  once  comes  into 
the  courts  of  equity,  it  draws  the  whole  administration  with  it, 
and  the  final  settlement  is  made  in  that  court.  Stewart  v.  Stewart, 
31  Ala.  207 ;  Adams  v.  Adams,  22  Vt.  50 ;  and  see  Thompson 
V.  Brown,  4  Johns.  Ch.  619,  630 ;  McKay  v.  Green,  3  id.  58 ; 
Colbert  v.  Daniel,  32  Ala.  329. 


ASSIGNMENTS.  355 

CHAPTER  XV, 

ASSIGNMENTS. 
ARTICLE  I. 

OF  THE   GENEEAL  RULES  RELATING  TO  ASSIGKMENTS. 

Section  1.  Assignments  in  general.  By  the  term  assignment^ 
as  used  in  common  parlance,  is  understood  a  transfer  or  making 
over  to  another  of  the  whole  of  any  property,  real  or  personal,  in 
possession  or  in  action,  or  of  any  estate  or  right  therein.  1  Bouv. 
Diet.  165.  In  a  more  technical  and  restricted  sense,  an  assign- 
ment is  the  transfer  of  the  interest  one  has  in  lands  and  tene- 
ments, and  is  usually  applied  to  an  estate  for  life  or  years.  See, 
1  Broom  &  Had.  753,  Wait's  ed. ;  2  Bl.  Com.  326 ;  3  Woodd. 
Lect.  170  ;  1  Steph.  Comm.  485  ;  Cruise  Dig.,  tit.  XXXII  (Peed), 
ch.  vii,  §  15.  So,  the  term  is  employed  to  denote  not  only  the 
act  of  transfer,  but  also  the  instrument  by  which  the  transfer  is 
effected. 

A  very  extensive  class  of  assignments  are  those  made  by  debt- 
ors for  the  benefit  of  creditors.  They  are  for  the  most  part  regu- 
lated by  statute  in  nearly  all  the  States  of  the  Union,  and  do  not, 
therefore,  come  within  the  scope  of  this  work.  It  is  merely  pro- 
posed to  give  the  general  rules  of  law  which  regulate  the  transfer 
of  rights  in  action,  without  regard  to  the  kind  of  property  or  the 
purposes  of  the  transfer. 

ARTICLE  XL 

WHAT  IS   ASSIGNABLE. 

Section  1.  In  general.  To  make  a  grant  or  assignment  valid 
at  laio,  the  thing  which  is  the  subject  of  it  must  have  an  existence, 
actual  or  potential,  at  the  time  of  such  grant  or  assignment.  Nee- 
dles V.  Needles,  7  Ohio  St.  432 ;  Mitchell  v.  Winslow,  2  Story,  630; 
ThalUiimer  v.  BrincTcerlioff^  3  Cow.  (N.Y.)  623;  Moody  n.  Wright, 
13  Mete.  (Mass.)  17 ;  Skipper  v.  Stokes,  42  Ala.  255.  But  courts  of 
equity  will  support  an  assignment  not  only  of  interests  in  action 
and  contingency,  but  of  things  which  have  no  present  actual  or 
potential  existence,  but  rest  in  mere  possibility  only  {Calkins  v. 


356  ASSIGNMENTS. 

Loclcwood,  17  Conn.  154 ;  Stoxer  v.  Eycleshimer^  4  Abb.  Ct.  App. 
[N.  Y.]  309 ;  3  Keyes,  620),  provided  tlie  agreement  is  fairly 
entered  into,  and  it  would  not  be  against  public  policy  to  uphold 
it.  Field  v.  Mayor,  etc.,  of  New  York,  6  N.  Y.  (2  Seld.)  179. 
Thus,  it  is  held  that  the  assignment  of  the  head-matter  and 
whale-oil  to  be  caught  in  a  whaling  voyage  now  in  progress  will 
be  valid  in  equity,  and  will  attach  to  the  head-matter  and  oil 
when  obtained.  Mitchell  Y.Winslow,  2  Story,  630.  And  see 
Taylor  v.  Palmer,  31  Cal.  240  ;  Tyler  v.  Barrows,  6  Robt.  (N. 
Y.)  104 ;  Groot  v.  Story,  41  Yt.  533 ;  8t.  Louis  v.  Clemens,  42 
Mo.  69;  Lansden  v.  McCarthy,  45  id.  106. 

The  assignment  of  a  chose  in  action  was  prohibited  at  common 
law.  Thallhimer  v.  BrincJcerhoff,  3  Cow.  623  ;  Coolidge  v.  Rug- 
gles,  15  Mass.  387.  The  only  exception  to  the  rule  being  in 
favor  of  the  King.  United  States  v.  Buford,  3  Pet.  (U.  S.)  30. 
This  rule,  though  still  having  a  nominal  existence,  serves  no 
other  purpose  than  to  merely  give  form  to  some  legal  proceed- 
ings, while  in  equity  it  is  totally  disregarded.  Thallhimer  v. 
Brinckerhoff,  3  Cow.  623.  And  the  doctrine  of  equitable  assign- 
ments has  been  gradually  extending  to  meet  the  convenience  of 
trade  and  business,  and  has  been  favorably  viewed  in  the  courts 
of  law,  subject,  however,  to  the  legal  principle,  that  in  such  cases 
the  assignee  can  enforce  his  claim  only  in  the  name  of  the  assignor, 
unless  there  be  an  express  promise  by  the  debtor  to  pay  the 
assignee.  Under  this  limitation  choses  in  action  generally  may 
be  the  subject  of  an  assignment ;  and  the  debts  which  are  con- 
tingent, and  money  yet  to  become  due,  may  well  be  assigned, 
these  circumstances  only  operating  to  postpone  the  liability  of 
the  debtor  until  the  contingency  happens  and  the  money  becomes 
payable.  Gibson  v.  Cooke,  20  Pick.  (Mass.)  17.  And  see  Has- 
kell  V.  Hilton,  30  Me.  419  ;  Dix  v.  Gohh,  4  Mass.  511;  Welch  v. 
Mandemlle,  1  Wheat.  (U.  S.)  236 ;  Smilie  v.  Stemns,  41  Vt.  321. 

§  2.  Lands^  and  interests  in  lands.  Every  estate  and  interest 
m  lands  and  tenements,  and  also  every  present  and  certain  estate 
or  interest  in  incorporeal  hereditaments  may  be  assigned.  Coke 
Litt.  46  h.  Thus,  the  interests  of  a  purchaser  {Ensign  v.  Kel- 
logg, 4  Pick.  [Mass.]  1 ;  Halberty.  Beering,  4  Litt.  [Ky.]  9;  Brown 
■  V.  Chambers,  12  Ala.  697) ;  iaortgagor  {Bigelow,  1  Pick.  485) ; 
iQ^^OT  {Willard  v.  Tillman,  2  Hill  [N.  Y.],  274  ;  see  Thacker  v. 
Henderson,  63  Barb.  271 ;  Demarest  v.  Willard,  8  Cow.  206); 
mortgagee,  lessee  and  tenant  for  life,  are  assignable  (see  Graham 
V.  Newman,  21  Ala.  497 ;  Outcalt  v.  Van  Winkle,  1  Green's  Ch. 


ASSIGNMENTS.  357 

|"N.  J.]  513) ;  so  are  the  profits  of  lands.  See  Cochran  v.  Paris,  11 
Gratt.  (Ya.)  348  ;  Robinson  v.  Mauldin,  11  Ala.  977. 

In  Georgia,  it  is  lield  that  an  estate  at  will  growing  out  of  the 
statute  of  frauds  is  assignable  ;  though,  if  created  by  the  act  of 
the  parties  under  the  common  law,  it  is  not.  Cody  v.  Quarter- 
man,  12  Ga.  386.  Rent  yet  to  grow  due  is  assignable.  Demar- 
est  V.  Willard,  8  Cow.  206.  So,  where  a  preference  to  enter 
lands  has  been  acquired  by  occupancy  and  possession,  the  right 
of  entry  or  occupancy  is  assignable  {Smith  v.  HanJcin,  4  Yerg. 
[Tenn.]  1) ;  as  is  also  a  right  of  entry  where  the  breach  of  the 
condition  ipso  facto  terminates  the  estate.  Ensign  v.  Kellogg, 
4  Pick.  1  ;  Gwynn  v.  Jones,  2  Gill  &  J.  (Md.)  173;  Warner  v. 
Bennet,  31  Conn.  468.  The  right  to  cut  trees,  which  have  been 
sold  on  the  grantor's  land  {McCoy  v.  Herbert,  9  Leigh  [l^a.]  548; 
Olmstead  v.  Niles,  7  N.  H.  522),  and  the  right  to  betterments  are 
likewise  assignable.    Lombard  v.  Ruggles,  9  Me.  62. 

Warrants  and  surveys  of  land  may  be  assigned  in  Virginia, 
but  entries  merely  cannot  {Morrison  v.  Campbell,  2  Rand.  206), 
though  It  is  otherwise  in  Kentucky.  Hart  v.  Benton,  3  Bibb, 
420 ;  id.  534.  A  widow  may  assign  her  interest  in  her  deceased 
husband's  estate,  and  such  assignment  is  sufficient,  in  equity,  to 
pass  such  interest  to  the  assignees.  Powell  v.  Powell,  10  Ala. 
900  ;  see  Johnson  v.  Shields,  32  Me.  424. 

A  pre-emption  right  has  been  held  not  assignable  ( Whitney  v. 
Buckman,  13.  Cal.  536) ;  but  the  general  grant  of  a  mining  privi- 
lege in  land  passes  an  estate  to  the  grantee,  which  he  may 
assign.  McBee  v.  Loftis,  1  Strobh.  Eq.  (S.  C.)  90  ;  see  Hoy  v. 
Smith,  49  Barb.  360  ;  Gaston  v.  Plum,  14  Conn.  344. 

The  assignment  of  a  contract  to  convey  an  interest  in  real 
estate,  upon  the  performance  of  certain  conditions,  vests  an 
equitable  interest  therein  in  the  assignee,  which  will  be  protected 
and  made  available  by  courts  of  law.  Dyer  v.  Burnham,  25 
Me.  9  ;  and  see  Br  ay  ton  v.  Garvin,  5  Wis.  117. 

The  interest  which  a  son  has  as  heir  of  his  father's  estate,  the 
father  being  alive,  may  be  the  subject  of  sale,  and  a  court  of 
equity  will  recognize  the  validity  of  such  sale  and  enforce  it,  when 
the  vendor's  right  attaches,  as  an  assignment  of  the  property, 
if  it  appears  that  the  transaction  was  fair,  and  for  a  valuable  con- 
sideration. Fitzgerald  v.  Vestal,  4  Sneed  (Tenn.),  258.  And  see 
Nimmo  v.  Davis,  7  Tex.  26. 

§  3.  Contracts.  A  contract  is  held  to  be  assignable  only  when 
the  entire  interest  therein  can  pass  by  the  assignment,  both  legal 


358  ASSIGNMENTS. 

and  equitable.  White  v.  BucJc,  7  B.  Monr.  (Ky.)  546.  A  contract 
to  plant  a  certain  area  of  land,  and  sell  all  the  crop  raised,  is  held 
assignable  by  the  buyer,  without  the  assent  of  the  seller.  Sears 
V.  Conomr,  4  Abb.  Ct.  App.  (N.  Y.)  179  ;  3  Keyes,  113  ;  33  How. 
324.  So,  among  assignable  contracts  or  agreements  are  the  fol- 
lowing :  A  contract  by  one  person  to  serve  another  for  a  certain 
length  of  time.  M' Kee  v.  Hoover,  1  T.  B.  Monr.  (Ky.)  32;  see 
Davenport  v.  Gentry ,  9  B.  Monr.  (Ky.)  427 ;  Hayes  v.  Willio,  4 
Daly  (N.  Y.),  259.  An  agreement  for  the  delivery  of  property. 
Lafferty  v.  Rutherford,  5  Ark.  649  ;  Tyler  v.  Barrows,  6  Rob. 
(N.  Y.)  104.  Or  to  pay  a  certain  sum  of  money  to  a  defendant,  if 
he  will  withdraw  his  defense.  Gray  v.  Garrison,  9  Gal.  325. 
Or  to  perform  work  upon  a  street.  Taylor  v.  Palmer,  31  id. 
240.  Or  not  to  run  boats  on  a  certain  line  of  travel.  Steam 
Navigation  Co.  v.  Wright,  6  id.  258.  A  contract  for  grading, 
curbing,  and  macadamizing  a  street.  St.  Louis  v.  Clemens,  42 
Mo.  69.  A  contract  for  the  labor  of  convicts.  Horner  v.  Wood, 
23  N.  Y.  (9  Smith)  350.  A  contract  on  which  personal  representa- 
tives can  sue.  Sears  v.  Conover,  34  Barb.  330  ;  4  Abb.  Ct.  App. 
179  ;  3  Keyes,  113  ;  33  How.  324.  A  written  promise  of  indemnity, 
whether  under  seal  or  not.  Fletcher  v.  Piatt,  7  Blackf.  (Ind.)  522. 
A  part  interest  in  a  written  contract.  Groves  v.  Ruby,  24  Ind.  418. 
The  balance  due  upon  a  mutual  account.  BartlettY.  Pearson,  29 
Me.  9.  A  claim  for  breach  of  contract.  Monahan  v.  Story,  2  E. 
D.  Smith  (N.  Y.),  393.  Or,  a  policy  of  insurance,  in  equity,  and 
every  set- off  between  insurer  and  insured,  prior  to  the  assignment, 
is  good  against  the  assignee.  Spring  v.  South  Carolina  Ins.  Co., 
8  Wheat.  (U.  S.)  268  ;  Guordon  v.  Nortli  America  Ins.  Co. ,  3 
Yeates  (Penn.),  327;  Carroll  v.  Boston  Mar.  Ins.  Co.,  8  Mass.  515; 
see  Jones  v. Alley,  17  Minn.  292.  An  assignment  of  wages  to  be 
earned,  made  in  good  faith  and  for  a  valuable  consideration,  is 
valid.  And  it  is  held  to  be  immaterial  that  the  work  is  being 
done  without  any  special  contract  as  to  time  ;  an  understanding 
that  the  employee  should  continue  in  the  service  of  the  employer 
as  previously,  is  sufiBicient.  Augur  v.  JVew  York  Belting  and 
Packing  Co.,  39  Conn.  536  ;  and  see  Garland  v.  Harrington,  61 
N.  H.  409;  Sharp  v.  Hdgar,  3  Sandf.  (N.  Y.)  379;  H7nery  v. 
Lawrence,  8  Cush.  (Mass.)  151 ;  Leahy  v.  Dugdale,  27  Mo.  437. 
The  moment  a  man  has  acquired  an  exclusive  interest  in  any 
thing,  though  it  shall  be  but  a  contingent  and  executory  interest, 
he  may  dispose  of  it,  if  not  foibidden  by  law.  Graham  v.  Henry, 
17  Tex.  164.     But  the  assignment  of  a  mere  expectation  of  earn- 


ASSIGNMENTS.  359 

ing  money,  if  there  is  no  contract  on  wMch  to  fonnd  the  expecta- 
tion, is  of  no  effect.  See  Mulhall  v.  Quinn,  1  Gray,  105.  Though 
such  an  assignment  may  be  made  valid  by  a  ratification  of  it, 
after  the  money  has  been  earned.  Farnsworth  v.  Jackson^  32 
Me.  419. 

An  assignment  of  an  alien  author' s  right  to  the  first  printing 
and  publication  of  a  manuscript  within  the  United  States  is  valid, 
and  the  right  is  within  the  cognizance  of  a  court  of  equity. 
Palmer  v.  De  Witt,^l  N.  Y.  (2  Sick.)  532  ;  S.  C,  7  Am.  Rep.  480; 
see  Shoolc  v.  Daly,  49  How.  (N.  Y.)  366. 

§  4.  Money  due,  or  to  become  due.  A  creditor  may  assign  his 
debt  to  a  third  person,  and  give  him  the  benefit  of  any  pledge 
which  he  holds  to  secure  the  payment  of  such  debt.  Chapman 
V.  Brooks,  31  N.  Y.  (4  Tiff.)  75.  So,  an  unliquidated  balance  of 
an  account  is  a  proper  subject  of  assignment.  Wescott  v.  Pot- 
ter, 40  Vt.  271 ;  Crocker  v.  Whitney,  10  Mass.  316.  And  the  same 
is  true  of  a  debt  for  goods  sold,  etc.,  of  which  the  evidence  rests 
on  an  account.  Cook,  Woodbridge  v.  Perkins,  3  Day  (Conn.), 
364 ;  Dix  v.  Cohh,  4  Mass.  511 ;  Norris  v.  Douglass,  5  N.  J.  L. 
(2  South.)  817 ;  or  of  a  debt  evidenced  by  a  note.  Long  v.  Con- 
stant, 19  Mo.  320. 

The  claim  of  a  sheriff,  for  services  which  have  been  rendered, 
and  expenses  which  have  been  incurred  in  the  execution  of  pro- 
cess, is  assignable.  Birkheck  v.  Stafford,  23  How.  (N.  Y.)  236 ; 
S.  C,  14  Abb.  285.  And  a  city  officer  who  is  chosen  for  a  year, 
subject  to  be  removed  from  office  at  any  time,  at  the  will  of  the 
mayor  and  aldermen,  and  whose  salary  is  payable  quarterly, 
may  legally  make  an  assignment  of  a  quarter' s  salary  before  the 
quarter  expires.  Brackett  v.  Blake,  7  Mete.  (Mass.)  335 ;  and  see 
State  Bank  v.  Hastings,  15  Wis.  75  ;  Thayer  v.  Kelley^  28  Vt. 
20.  So  costs  due  the  clerk  of  a  court  are  assignable  in  equity. 
Ciples  V.  Blair,  Eice's  Ch.  (S.  C.)  60  ;  and  a  turnpike  company 
may,  in  equity,  assign  the  money  due  them  for  subscriptions. 
Miller  V.  Malony,  3  B.  Monr.  (Ky.)  105. 

A  judgment  and  execution  may  be  assigned  so  as  to  vest  an 
equitable  interest  in  the  assignee,  which  the  law  will  protect. 
Brown  v.  Maine  Bank,  11  Mass.  153  ;  Pearson  v.  Talbot,  4  Litt. 
(Ky.)  435 ;  Brahan  v.  Ragland,  3  Stew.  (Ala.)  247  ;  Vanhouten 
V.  Reily,  14  Miss.  (6  Smed.  &  M.)  440 ;  see  Tutt  v.  Couzins.  50 
Mo.  152. 

§5.  Causes  of  action.  We  have  already  seen  {ante,  356,  §  1,) 
that  by  the  common  law  mere  choses  in  action  are  not  assign- 


360  ASSIGNMENTS. 

able.  But  this  is  a  formal  diflBculty  only,  for  the  assignment  of 
a  chose  in  action  is  valid  in  equity,  and  courts  of  law  will  take 
notice  of  equitable  assignments  to  protect  them,  and  will  allow 
the  assignee  to  maintain  an  action  thereon  in  the  name  of  the 
assignor.  See  ante,  art  2,  §  1,  and  cases  there  cited.  The  assignor, 
by  the  assignment,  gives  authority  to  the  assignee  to  use  his  name 
in  any  legal  proceedings  which  may  become  necessary  to  give 
full  effect  to  the  assignment.  The  assignor  becomes  the  trustee 
of  the  assignee.  Eastman  v.  Wrigltt,  6  Pick.  (Mass.)  316.  See, 
also,  WTieeler  v.  WJieeler,  9  Cow.  (N.  Y.)  84  ;  Welcli  v.  Mandeville, 
1  Wheat.  (U.  S.)  236.  Chose  in  action,  taken  in  its  broadest 
latitude,  comprehends  not  only  a  demand  arising  on  contract, 
but  also  a  wrong  or  injury  done  to  property  or  person.  See 
Oillet  V.  Fair  child,  4  Denio  (N.  Y.),  80  ;  People  v.  Tioga  C.  P., 
19  Wend.  75.  But  for  the  purposes  of  any  sort  of  assignment, 
legal  or  equitable,  the  term  is  generally  restricted  to  a  claim  due 
either  on  contract,  or  to  a  claim  that  some  special  damage  has 
arisen  to  the  estate  of  the  assignor.  Id.  And  see  McKee  v.  Judd, 
12  N.  Y.  (2  Kern.)  625  ;  Davis  v.  Herndon,  39  Miss.  484 ;  Jordan 
v.  Gillen,  44  N.  H.  424. 

A  right  of  action  for  the  conversion  of  personal  property  has 
been  held  assignable.  McKee  v.  Judd,  12  N.  Y.  (2  Kern.)  625  ; 
Lazard  v.  Wheeler,  22  Cal.  139  ;  Webher  v.  Dams,  44  Me.  147 ; 
Hawk  V.  Tliorn,  54  Barb.  (N.  Y.)  164 ;  but  see  DunTdin  v.  Wilkins, 
5  Ala.  199  ;  Dams  v.  Herndon,  39  Miss.  484.  So  a  claim  for  money 
obtained  by  fraudulent  representations  is  assignable.  Byxhie  v. 
Wood,  24  N.  Y.  (10  Smith)  607  ;  Allen  v.  Brown,  51  Barb.  (N.  Y.) 
86  ;  Stewart  v.  Balderson,  10  Kans.  131 ;  as  is  likewise  a  cause  of 
action  for  the  recovery  of  damages  upon  an  undertaking  on 
arrest.  Moses  v.  Waterhury  Button  Co.,  37  N.  Y.,  Superior  Ct. 
393.  A  right  of  action  against  a  common  carrier  for  negligence 
in  not  delivering  goods  ;  Smith  v.  N.  T.  &  New  Raven  R.  JR.  Co., 
28*  Barb.  (N.  Y.)  605  ;  or  for  the  loss  of  goods  ;  Freeman  v.  New- 
ton, 3  E.  D.  Smith  (N.  Y.)  246 ;  or  to  recover  the  value  of  prop- 
erty intrusted  to  him,  may  be  assigned ;  Merrill  v.  Qrinnell, 
30  N.  Y.  (3  Tiff.)  594 ;  and  the  right  of  action,  which  a  carrier 
has  for  an  injury  to  the  goods  of  a  third  person,  injured  while 
in  his  possession,  is  assignable ;  Merrick  v.  Brainard,  8  Barb. 
(N.  Y.)  574.  The  lien  of  a  material-man  or  mechanic  is  assign- 
able ;  Tuttle  V.  Howe,  14  Minn.  145 ;  and  a  cause  of  action  to 
enforce  a  mortgage  survives  to  the  personal  representatives,  and 
is,  therefore,  assignable ;  Marvin  v.  Inglis,  39  How.  (N.  Y.)  329 ; 


ASSIGNMENTS.  361 

and  see  Waldron  v.  Willard,  17  N.  Y.  (3  Smith)  466 ;  ZabrisMe 
V.  8mit7i,  13  N.  Y.  (3  Kern.)  322 ;  Freeman  v.  pfewton,  3  E.  D. 
Smith  (N.  Y.),  130. 

The  assignment  of  part  of  a  note,  which  is  being  at  the  time 
sued  upon,  is  valid,  and  will  not  be  vitiated  by  a  subsequent  as- 
signment of  the  rest  of  the  note  to  other  parties.  Gardner  v. 
Smith,  1  Heisk.  (Tenn.)  256. 


ARTICLE  III. 

WHAT  IS  NOT  ASSIGKABLE. 

Section  1.  In  general.  In  general,  mere  personal  torts,  which 
die  with  the  party,  and  do  not  survive  to  his  personal  represen- 
tatives, are  incapable  of  passing  by  assignment.  Comegys  v. 
Vasse,  1  Pet.  (U.  S.)  193;  Grant  y.  Ludlow,  8  Ohio  St.  1;  Lin- 
ton V.  Hurley,  104  Mass.  353  ;  Norton  v.  Tuttle,  60  111.  130 ;  Mc- 
GlincJiy  v.  Hall,  58  Me.  152.  And  assignments  that  are  illegal 
or  against  public  policy  will  not  be  sustained  at  law  or  in  equity. 
Thus,  an  assignment  by  a  judge  of  his  salsLry.-Flarty  v.  Odium, 
3  Term.  R.  681 ;  see  State  Bank  v.  Hastings,  15  Wis.  78  ;  or  an 
assignment  by  an  officer  in  the  army  or  navy  of  his  pay,  or  of 
his  commission.  Id.  ;  ■  Wells  v.  Foster,  8  M.  &  W.  149 ;  Colly er 
V.  Fallon,  1  Turn.  &  Russ.  459,  will  not  be  supported.  And  an 
assignment  of  the  future  earning  or  salaries  of  an  officer  or  em- 
ployee of  the  United  States  government,  in  consideration  of  pay- 
ment in  advance,  is  void  not  only  as  against  public  policy,  Bliss 
V.  Lawrence,  58  N.  Y.  (13  Sick.)  442 ;  S.  C,  48  How.  (N.  Y.)  21  ; 
but  also  as  in  direct  contravention  of  act  of  Congress.  Billings 
V.  OBrien,  45  How.  (N.  Y.)  392;  S.  C,  14  Abb.  (N.  S.)  238;'  4 
Daly,  556.  So,  the  assignment  of  claims  against  the  United 
States  in  certain  cases  is  prohibited  by  statute.  Danlclessen  v, 
Braynardy  3  Daly  (N.  Y.),  183 ;  Bedker  v.  Sweetser,  15  Minn. 
427.  And  the  bare  right  to  JBle  a  bill  in  equity  growing  out  of 
the  perpetration  of  a  fraud  on  a  party  is  not  assignable,  being 
contrary  to  public  policy  and  savoring  of  the  character  of  main- 
tenance. The  assignor  must  have  a  substantial  right,  and  not  a 
mere  naked  right  to  overset  a  legal  instrument  or  to  maintain  a 
suit.  Norton  v.  Tuttle,  60  111.  130  ;  Morrison  v.  Deaderick,  10 
Humph.  (Tenn.)  342 ;  Milwaukee,  ete.^  R.  R.  Co.  v.  Milwaukee, 
etc.,  R.  R.  Co.,  20  Wis.  174  ;  Prosser  v.  Edmonds^  1  Younge  & 
Coll.  418 ;  Marsfiall  v.  Means,  12  Ga.  61. 

Vol.  I.— 46 


362  ASSIGNMENTS. 

It  is  held,  that  contracts  for  tlie  performance  of  personal  duties 
or  services  are  not  assignable  by  the  employer.  Hays  v.  Willio,  4 
Daly  (N.  Y.),  259  ;  Davenport  v.  Gentry,  9  B.  Monr.  (Ky.)  427. 
So,  where  a  contract  is  founded  in  personal  trust  and  confidence, 
the  assignee  thereof  cannot  recover  upon  it  without  the  consent 
of  the  party  contracting  with  his  assignor,  to  the  assignment. 
Lansden  v.  Mc  Carthy,  45  Mo.  106  ;  Fairgrieves  v.  Lehigh 
Co.,  2  Phil.  (Penn.)  182.  But  see  Grootv.  Story,  41  Vt.  633;  Tay- 
lor V.  Palmer,  31  Cal.  240.  And  it  is  held,  that  a  note  or  bond, 
payable  wholly  or  partly  in  personal  services,  is  not  assignable. 
Henry  v.  Hughes,  1  J.  J.  Marsh.  (Ky.)  454 ;  Bothick  v.  Purdy, 
3  Mo.  82  ;  Ransom  v.  Jones,  2  111.  (1  Scam.)  291.  So,  in  case  of 
a  deed,  conditioned  for  the  support  of  a  person  in  old  age,  the 
interest  of  neither  party  is  assignable  without  the  consent  of  the 
other.     Bethlehem  v.  Annis,  40  N.  H.  34. 

A  parol  license  to  be  exercised  on  the  land  of  another  is  a 
mere  personal  trust  and  confidence,  and  is  not  assignable.  Cowles 
V.  Kidder,  24  N.  H.  (4  Post.)  364 ;  Mendenhall  v.  Klinck,  51  N. 
Y.  (6  Sick.)  246  ;  nor  is  a  license  to  keep  a  grocery,  assignable. 
Lewis  V.  United  States,  1  Morr.  (Iowa)  199  ;  Munsell  v.  Temple, 
8  111.  (3  Gilm.)  92.  But  it  is  held  that  a  permit  to  cut  logs  from 
the  State  lands  may  be  assigned  as  security  for  supplies  already 
advanced,  or  to  be  furnished  at  a  subsequent  time.  Mason  v. 
Sprague,  47  Me.  18. 


ARTICLE  IV. 

FOEM  AND  MODE   OF  ASSIGNING. 

Section  1.  In  general.  It  was  held  formerly  that  the  instru- 
ment of  transfer  must  be  of  as  high  a  nature  as  the  instrument 
transferred ;  for  instance,  that  an  assignment  of  an  instrument 
under  seal  must  be  by  deed.     Wood  v.  Partridge,  11  Mass.  488. 

But  this  rule  is  no  longer  observed  in  all  its  strictness,  if  at 
all,  and  there  may  now  be  a  valid  assignment  of  a  contract  by 
a  mere  transfer  of  the  evidence  of  the  contract.  Dunn  v.  Snell, 
15  Mass.  481 ;  Prescott  v.  Hull,  17  Johns.  284 ;  Porter  v.  Bul- 
lard,  26  Me.  448  ;  Gotten  v.  Williams,  1  Fla.  37 ;  Sexton  v.  Fleets 
2  Hilt.  (N.  Y.)  477 ;  Dor  emus  v.  Williams,  4  Hun  (N.  Y.),  458. 
But  in  order  to  constitute  an  assignment,  either  in  law  or  equity, 
there  must  be  such  an  actual  or  constructive  appropriation  of 
the  subject-matter  assigned,  as  to  confer  a  complete  and  present 


ASSIGNMENTS.  363 

right  on  the  assignee  ;  and  this,  even  where  the  circumstances  do 
not  admit  of  its  immediate  exercise.  Id.;  Ford  v.  Garner^  15 
Ind.  298.  And  a  mere  promise,  though  of  the  clearest  and  most 
solemn  kind,  to  pay  a  debt  out  of  a  particular  fund  is  not  an 
assignment  of  the  fund  even  in  equity.  Id. ;  Christmas  v.  Eus- 
sell,  14  Wall.  (U.  S.)  69.  But  an  order  drawn  upon  a  particular 
fund,  or  for  the  payment  of  particular  money  in  the  hands  of 
the  drawee,  not  otherwise  appropriated,  followed  by  notice  of 
such  order,  to  the  drawee,  is  an  equitable  assignment  of  the 
money  of  the  drawer  in  the  hands  of  the  drawee,  to  the  amount 
of  such  order.  Lewis  v.  Berry,  64  Barb.  (N.  Y.)  593  ;  Conway 
V.  Cutting,  51  N.  H.  407.  See  Noe  v.  CJiristie,  51  N.  Y.  (6  Sick.) 
270;  Rodick  v.  Gandell,  1  De  G.,  M.  &  G.763  ;  S.  C,  15  Eng.  Law 
&  Eq.  22.  See  Risley  v.  Smith,  39  N.  Y.  S.  C.  137 ;  Alger  v. 
Scott,  54  N.  Y.  (9  Sick.)  14. 

An  assignment  of  a  mortgage  by  an  individual  or  by  a  corpo- 
ration, without  seal,  is  a  valid  transfer  of  the  mortgage  debt. 
Runyan  v.  Mersereau,  11  Johns.  534;  Gillette.  Campbell,  iBenio 
(N.  Y.),  520.    But  see  Prescott  v.  Ellingwood,  23  Me.  345. 

So  a  judgment  may  be  assigned  by  parol,  or  writing  without 
seal  {Ford  v.  Stuart,  19  Johns.  [N.  Y.]  342  ;  Becton  v.  Ferguson, 
22  Ala.  599) ;  and  the  same  is  true  of  an  obligation  or  covenant. 
Morange  v.  Edwards,  1  E.  D.  Smith  (N.  Y.),  414  ;  Howell  v. 
BulTcley,  1  Nott  &  M.  (S.  C.)  250 ;  Dawson  v.  Coles,  16  Johns. 
(N.  Y.)  51.  See  Arnold  v.  Barrow,  2  Patt.  &  H.  (Va.)  1.  The 
delivery  of  a  note,  bill,  or  execution,  with  intent  to  transfer  the 
debt  on  a  fair  bargain  upon  valuable  consideration,  is,  in  general, 
a  sufficient  assignment  of  the  note,  bill,  or  judgment  {Clark  v. 
Rogers,  2  Me.  147 ;  Jones  v.  Whitter,  13  Mass.  304 ;  Tutt  v.  Cou- 
zins,  50  Mo.  152  ;  Rollison  v.  Hope,  18  Tex.  446) ;  and  so  of  other 
choses  in  action.  Onion  v.  Paul,  1  Harr.  &  J.  (Md.)  114;  Noyes 
V.  Brown,  33  Vt.  431 ;  Porter  v.  Bullard,  26  Me.  448  ;  Garnsey 
V.  Gardner,  49  id.  167 ;  Grover  v.  Grover,  24  Pick.  (Mass.)  261  ; 
Briggs  v.  Dorr,  19  Johns.  (N.  Y.)  95 ;  Robinson  v.  Williams,  3 
Head  (Tenn.),  540.  And  a  contract  in  writing  to  convey  land 
{Currier  v.  Howard,  14  Gray  [Mass.],  511),  or  a  book  debt,  may 
be  assigned  verbally.     Stafford  v.  Page,  15  Vt.  490. 

No  particular  form  is  necessary  in  equity  to  constitute  an 
assignment,  and  courts  of  equity  give  effect  to  assignments  in 
many  cases  where  they  would  not  be  sustained  at  common  law. 
See  Clemson  v.  Davidson,  5  Binn.  (Penn.)  392  ;  Morton  v.  Naylor^ 
1  Hill  (N.  Y.),  583  ;  Hoppiss  v.  Eskridge,  2  Ired.  Eq.  (N.  C)  54. 


864  ASSIGNMENTS. 

Under  the  New  York  Code  of  Procedure,  an  assignment,  valid 
as  an  equitable  assignment,  is  equally  valid  at  law.  Hooker  v. 
Eagle  Bank,  30  N.  Y.  (3  Tiflf.)  83. 

ARTICLE  V. 

VALIDITY   OF  ASSIGNMENT  AS  TO   ASSIGNOR'S   CREDITORS. 

Section  1.  In  general.  In  order  that  an  assignment  of  a  chose 
in  action  may  be  valid  as  against  the  creditors  of  the  assignor, 
it  must  be  hona  fide,  and  upon  adequate  consideration  ;  and  a 
mere  formal  transfer  is  insufficient  for  the  purpose.  Qiddings  v. 
Coleman,  12  N.  H.  153  ;  Langley  v.  Berry,  14  id.  82.  See  Lons- 
dale's Estate,  29  Penn.  St.  407 ;  Jones  v.  Drake,  6  Phil.  (Penn.) 
416;  Cunningham  Y.  Freeborn,  11  Wend.  (N.Y.)  241 ;  Z>'  Wolf  v. 
Pratt,  42  111.  198. 

ARTICLE  VI. 

RIGHTS  OF  ASSIGNEE. 

Section  1.  In  general.  An  assignment  of  a  chose  in  action 
does  not  pass  to  the  assignee  a  legal  right  to  the  security  or 
debt,  but  merely  vests  in  him  an  equitable  interest,  which  the 
courts  of  law  will  protect.  Garland  v.  Bicheson,  4  Rand.  (Ya.) 
266 ;  Day  v.  Whitney y  1  Pick.  (Mass.)  504 ;  Sloan  v.  Sutti- 
mers,  14  N.  J.  L.  (2  G-reen)  510 ;  Upton  v.  Wallace,  44  Yt. 
522.  After  the  assignment,  the  assignor  will  not  be  permit- 
ted to  defeat  the  rights  of  the  assignee,  whether  the  assignment 
be  good  at  law  or  only  in  equity.  Kimball  v.  Huntington,  10 
Wend.  (N.  Y.)  675;  Chapman  y.  Haley,  43  N.  H.  300;  Blin  v. 
Pierce,  20  Yt.  25.  The  rule  under  this  head  is  briefly  stated  to 
be,  that  the  assignee  acquires  the  rights,  neither  more  nor  less, 
of  the  assignor,  and  stands  in  his  exact  position.  The  assignor 
can  transfer  no  better  right  than  that  of  which  he  is  possessed. 
Oray  v.  Thomas,  18  La.  Ann.  412 ;  Jack  v.  Davis,  29  Ga.  219  ; 
Smith  V.  Bogers,  14  Ind.  224  ;  Wilson  v.  Bowden,  26  Ark.  151 ; 
Bush  V.  Lathrop,  22  N.  Y.  (8  Smith)  635 ;  Ely  v.  McNight,  30 
How.  (N.  Y.)  97;  Shotwell  v.  Weeh,  23  Miss.  375. 

An  assignee  of  a  demand  is  the  proprietor  of,  and  may  release 
it.  Dade  v.  Herbert,  1  Cranch  (C.  C.),  85  ;  Pate  v.  Oray,  Hempst. 
155;  but  a  release  by  an  assignor  of  his  assignee's  claim,  is  a 
nullity.     Parker  v,  Kelley,  18  Miss.  184. 


ASSIGNMENTS.  366 

By  the  assignment  of  a  right  all  its  accessories  pass  with  it. 
Thus,  an  assignment  of  a  debt  carries  with  it  by  implication, 
and  as  an  incident  to  the  principal  subject,  any  collateral  secu- 
rity which  the  creditor  may  hold  for  the  enforcement  of  it.  Hurt 
V.  Wilson,  38  Cal.  263  ;  Raintan  v.  Harding,  3  Phil.  (Penn.)  449  ; 
Waller  v.  Tate,  4  B.  Monr.  (Ky.)  529  ;  QathcarV  s  Appeal,  13 
Penn.  St.  416;  Lindsey  v.  Bates,  42  Miss.  397.  And  the  assign- 
ment of  a  judgment  for  a  debt  carries  the  debt,  and  if  the  debt 
be  secured  by  mortgage,  it  carries  also  the  mortgage  interest.  lb.; 
Bolen  V.  Crosby,  49  N.  Y.  (4  Sick.)  183.  So,  if  the  assignment 
be  of  only  part  of  the  judgment,  a  proportionate  interest  in  the 
mortgage  passes.  Pattison  v.  Hull,  9  Cqw.  (N.  Y.)  747.  A 
transfer  or  assignment  of  a  promissory  note  secured  by  mortgage 
carries  with  it  all  the  rights  of  the  mortgage,  and  the  privileges 
given  to  secure  it.  Perot  v.  Levasseur,  21  La.  Ann.  629.  ^nd 
when  a  note  secured  by  a  lien  is  assigned,  the  lien  is  also  as- 
signed. ForwoodY.  DeTioney,  5  Bush  (Ky.),  174;  Guy  v.  But- 
ler, 6  id.  508  ;  Perry  v.  Roberts,  30  Ind.  244.  So,  an  assignment 
of  a  bond,  which  is  secured  by  a  collateral  mortgage  or  deed,  of 
trust,  passes  the  collateral.  Miller  v.  Hoyle,  6  Ired.  Eq.  (N.  C.) 
269.  And  upon  the  assignment,  of  a  bond  and  mortgage,  a  guar- 
anty of  collection,  given  by  a  previous  assignor,  passes  as  inci- 
dent to  the  debt,  although  not,  in  terms,  transferred  with  the 
principal  obligations.  Craig  v.  ParMs,  40  N.  Y.  (1  Hand)  181  ; 
and  see  Smith  v.  Starr,  6  N.  Y.  S.  C.  (T.  &  C.)  387  ;  S.  C,  4  Hun, 
123.  An  assignment  of  goods  at  sea  and  their  proceeds  is  suffi- 
cient to  pass  a  legal  title  to  the  proceeds.  Hodges  v.  Harris,  6 
Pick.  (Mass.)  359  ;  Arnold  v.  Elwell,  13  Me.  261.  And  an  assign- 
ment of  a  claim  on  a  steamboat,  for  supplies  furnished,  carries 
with  it  the  statutory  lien  on  the  boat.  Strother  v.  Hamburg,  11 
Iowa,  59.  In  general,  an  assignment  of  a  particular  claim  passes 
to  the  assignee  all  remedies  and  liabilities  which  the  assignor 
had  to  secure  and  recover  it,  though  they  are  not  specifically 
mentioned  in  the  assignment.    MeTiaffy  v.  Share,  2  Penn.  361. 

The  assignment  of  a  judgment  and  execution  passes  all  inter- 
est in  the  further  enforcement  of  the  judgment,  but  not  in  the 
money  which  the  sheriff  has  previouslj^  collected  on  it.  Robin- 
son V.  Toions,  30  Ga.  818.  Nor  does  the  assignment  of  a  bond 
for  a  deed  of  lands  invest  the  assignee  with  the  right  to  rents, 
which  have  already  accrued,  without  something  showing  that  it 
was  intended  to  transfer  them  (  Van  Driel  v.  Eosierz,  26  Iowa, 
675) ;  though  it  is  otherwise  as  to  the  rents  accruing  after  the 


366  ASSIGNMENTS. 

assignment.  lb.  Costs,  being  only  an  incident  of  a  verdict,  will 
not  pass  by  an  assignment  whicli  does  not  pass  the  verdict.  Law- 
rence V.  Martin^  22  Cal.  173. 


ARTICLE  VII. 

LIABILITIES   OF  ASSIGNEE. 

Section  1.  In  general.  It  is  the  general  and  well-established 
rule,  that  an  assignee  of  a  demand  or  right  in  action,  negotiable 
instruments  only  excepted,  holds  subject  to  all  equities,  burdens 
and  ojffsets  which  existed  at  the  time  of  the  assignment,  against 
the  assignor.  Faull  v.  Tinsman^  36  Penn.  St.  108  ;  Walker  v. 
Johnson,  13  Ark.  522  ;  Tlmms  v.  Shannon,  19  Md.  296 ;  State 
Mutual  Fire  Ins.  Co.  v.  Moherts,  31  Penn.  St.  438 ;  Conoon  v. 
Van  Mater,  15  N.  J.  L.  (3  Green)  481 ;  Blydenburg  v.  Thay&r, 
1  Abb.  Ct.  App.  (N.  Y.)  156;  Martin  v.  Richardson,  68  N.  C. 
255  ;  Parrish  v.  Brooks,  4  Brewst.  (Penn.)  154.  And  the  rule  has 
been  held  applicable  to  the  assignment  of  a  bond  {Scott  v. 
Sh/reem,  12  Wheat.  605),  a  mortgage  {Ingraham  v.  Disborough, 
47  N.  Y.  [2  Sick.]  421 ;  Eitel  v.  Bracken,  38  Super.  Ct.  [N.  Y.]  7), 
and  a  judgment  {Jordan  v.  Black,  2  Murph.  [N.  C]  30  ;  Colquit 
V.  Bonner,  2  Ga.  155).  So  it  applies  to  the  title  of  an  assignee 
from  an  assignee  ;  he  takes  subject  to  the  equities  between  the 
original  assignor,  and  the  first  assignee.  Cutis  v.  Guild,  57  N.  Y. 
(12  Sick.)  229  ;  Metzgar  v.  Metzgar,  1  Rawle  (Penn.),  227  ;  Clute 
V.  Robinson,  2  Johns.  (N.  Y.)  595  ;  see  Downey  v.  Tharp,  63 
Penn.  St.  322. 

ARTICLE  YIII. 

RIGHTS  OF  ASSIGNOR. 

Section  1.  In  general.  A  party,  equitably  entitled  to  a  chose 
in  action,  may  sue  for  it  in  the  name  of  the  assignor  when  neces- 
sary, and  the  court  will  protect  him  against  any  acts  of  the  nom- 
inal plaintiff  designed  to  defeat  the  suit.  But  the  assignor  is 
entitled  to  an  indemnity  against  the  costs  of  a  suit  thus  brought. 
Farnsworth  v.  Sweet,  5  N.  H.  267;  Anderson  v.  Miller,  7  Smedes 
&  M.  (Miss.)  586;  Gordon  v.  Drury,  20  N.  H.  353. 


ASSIGNMENTS.  367 

ARTICLE  IX. 

LIABILITY  OF  ASSIGNOR. 

Section  1.  In  general.  An  assignee  cannot  hold  the  assignor 
liable,  on  account  of  an  offset  set  up  against  the  assigned  demand, 
unless  he  has  given  the  assignor  notice  of  such  offset.  Drayton 
V.  Thompson^  1  Bay  (S.  C),  265.  And  the  doctrine  that  the  ven- 
dor of  chattels  in  possession  impliedly  warrants  the  title,  extends 
to  choses  in  action.  Swanzey  v.  Parker,  50  Penn.  St.  450  ;  Led- 
wich  V  McEim,  53  N.  Y.  (8  Sick.)  307;  Giffert  v.  West,  33 
Wis.  617. 

Every  obligee  or  holder  of  an  obligation  who  assigns  it  to 
another,  especially  if  he  does  so  for  a  valuable  consideration, 
impliedly  at  least,  thereby  engages  that  it  is  genuine  and  binding 
upon  the  obligor,  unless  he  discloses  fully  and  truly  to  the 
assignee,  in  treating  "for  the  assignment,  all  the  facts  and  circum- 
stances connected  with  the  execution  and  delivery  of  the  obliga- 
tion. After  being  thus  advised,  the  assignee  agrees  to  take  it  at 
his  own  risk.  Stroh  v.  Eess,  1  W.  &  S.  (Penn.)  153.  If  the  as- 
signee of  a  bond  cannot  recover  it  from  the  obligor  by  reason  of 
the  consideration  of  it  having  failed  before  the  assignment  of  it 
was  made,  he  may  recover  back  from  the  assignor  the  money  he 
paid  for  the  assignment,  whether  he  holds  his  guaranty  or  not ; 
and  the  assignee's  right  of  action  accrues  immediately.  Flynn 
v.  Allen,  57  Penn.  St.  482  ;  Stewart  v.  West,  14  id.  336.  So  upon 
the  sale  of  a  note  and  mortgage,  the  maker  of  which  is  known 
by  both  parties  to  be  insolvent,  if  the  vendor  represents  the 
mortgage  to  be  good  as  an  inducement  to  the  vendee  to  buy,  and 
the  latter  buys  relying  upon  such  representation,  but  the  mort- 
gagor has  in  fact  no  title  to  the  mortgaged  premises,  the  vendor 
is  liable  to  the  purchaser  for  the  consideration  paid.  HaJin  v. 
DooUttle,  18  Wis.  196. 

The  vendor  of  a  bill  of  exchange  or  promissory  note,  whether 
the  transfer  be  by  indorsement  or  delivery,  impliedly  warrants 
that  it  is  genuine  and  not  a  forgery,  and  that  it  is  of  the  kind 
and  description  it  purports  to  be.  Murray  v.  Judah,  6  Cow. 
(N.  Y.)  484;.  Jferrmm  v.  Wolcott,  3  Allen  (Mass.),  258;  Bell  v. 
Oafferty,  21  Ind.  411 ;  TJiompson  v.  McCullough,  31  Mo.  224. 
And  the  vendor,  though  no  party  to  the  bill,  is  responsible  for 
its  genuineness  {Thrall  v.  Newell,  19  Vt.  202  ;  Gurney  v.  Worm- 
ersley,  28  Eng,  L.  &  Eq.  256) ;  and  if  the  name  of  the  party  is 


368  ASSIGNMENTS. 

forged  and  the  bill  becomes  valueless,  lie  is  liable  to  the  vendee 
as  iipon  a  failure  of  consideration.  Id.  See  Baxter  v.  Duren,  29 
Me.  434.  If  an  indorsement  turns  out  to  be  forged,  the  seller 
will  be  held  liable  to  the  vendee  for  what  he  has  received  from 
him  with  interest  from  the  receipt  thereof.  AldricJi  v.  Jackson^ 
5  R.  I.  218.  See  a  full  discussion  of  this  subject  under  head  of 
Bills  and  Notes. 

ARTICLE  X. 

ACTI02S"  AT  LAW  BY  ASSIGNEE. 

Section  1.  In  general.  In  England,  any  instrument  or  claim, 
though  not  negotiable,  may  be  assigned  to  the  king,  who  can  sue 
on  it  in  his  own  name.  Master  v.  3fiUer,  4  T.  R.  320,  340 ;  TTiall- 
Tiimer  v.  Brinckerhoff^  3  Cow.  (N.  Y.)  623.  And  no  valid  objec- 
tion is  perceived  against  giving  the  same  effect  to  an  assignment  to 
the  government  in  this  country.  United  States  v.  Buford,  3  Pet. 
(TJ.  S.)  13,  30.  But  the  general  common-law  rule  applicable  to  a 
chose  in  action  not  negotiable  is,  that  if  assigned,  an  action  at  law 
thereon  must  be  brought  in  the  name  of  the  assignor,  except  where 
the  defendant  has  expressly  promised  the  assignee  to  respond  to 
him  {Skinner  v.  Somes,  14  Mass.  107 ;  Jessel  v.  Williamshurgh 
Ins.  Co.,  3  Hill  [N.  Y.],  88  ;  Innes  v.  Dunlop,  8  T.  R.  595) ;  and 
every  thing  which  might  have  been  shown  in  defense  against  the 
assignor  may  be  used  against  the  assignee.  Wood  v.  Perry,  1 
Barb.  (N.  Y.)  114 ;  Bartlett  v.  Pearson,  29  Me.  9,  and  see  cases 
cited  ante,  366,  art.  7.  In  many  of  the  States  of  the  Union  choses 
in  action  have  been  made  legally  assignable  by  statute,  thereby 
enabling  an  assignee,  like  the  indorsee  of  a  negotiable  security, 
to  enforce  the  demand  in  his  own  name.  See  Hooker  v.  Eagle 
Bank,  30  N.  Y.  (3  Tiff.)  83 ;  Boremns  v.  Williams,  4  Hun  (N.  Y.), 
458  ;  Dohyns  v.  McGovern,  15  Mo.  662  ;  Carpenter  v.  Johnson, 
1  Nev.  331  ;  Mills  v.  Murry,  1  Neb.  327 ;  Allen  v.  Miller,  11 
Ohio,  374 ;  McDonald  v.  Kneeland,  5  Minn.  352 ;  Andrews  v. 
Bue,  34  N.  J.  L.  402  ;  Russell  v.  Petree,  10  B.  Monr.  (Ky.)  184  ; 
Fletcher  v.  Piatt,  7  Blackf.  (Ind.)  522 ;  White  v.  Tucker,  9  Iowa, 
100  ;  Stewart  v.  Balderston,  10  Kans.  131 ;  Long  v.  Heinrich,  46 
Mo.  603.  But  the  power  thus  given  to  sue  in  the  assignee's  name 
does  not  affect  the  rights  of  the  parties.  The  equities  in  defense 
are  not  excluded.  Myers  v.  Davis,  22  N.  Y.  (8  Smith)  489.  The 
statute  merely  enables  an  assignee  to  maintain  an  action  in  his 
own  name,  in  those  cases  in  which  the  right  was  previously 


ASSIGNMENTS.  369 

assignable  at  law  or  in  equity.  See  Purple  v.  Hudson,  etc.^  4 
Duer  (N.  Y.),  74;  McMahon  v.  Allen,  34  Barb.  (N.  Y.)  56  ;  S.  C, 
12  Abb.  275.  The  nature  of  an  assignment  itself  is  not  altered. 
Cox  Y.  Sprigg,  6  Md.  274. 

In  the  absence  of  a  statute  regulating  assignments,  where  one 
in  good  faith  and  for  a  valuable  consideration  has  assigned  all 
his  interest  in  a  chose  in  action,  the  assignee  may  use  the  name 
of  the  assignor  in  a  suit  to  enforce  his  right  whenever  that  is 
necessary.  And  the  assignor  cannot  control  the  suit,  and  his  ad- 
missions made  subsequent  to  the  assignment  and  after  notice 
will  not  be  received  to  defeat  it.  Halloran  v.  Whitcomb,  43  Yt. 
306.  See  Swepson  v.  Harvey,  69  N.  C.  387.  But  the  rule  that 
the  bona  fide  assignee  of  a  chose  in  action  will  be  protected 
against  the  release  of  the  nominal  plaintiff,  executed  aftei*  notice 
to  the  defendant,  is  held  not  to  apply  where  the  assignee  has  by 
fraudulent  assertions  and  devices  concealed  the  true  relations  of 
the  parties.  Atkinson  v,  Bunnells,  60  Me.  440 ;  Randall  v. 
Howard,  2  Black,  285. 

ARTICLE  XI. 

ACTION   IN  EQUITY  BY  ASSIGNEE. 

Section  1.  In  general.  As  a  general  rule,  a  court  of  equity 
will  not  entertain  a  suit  brought  by  the  assignee  of  a  debt,  or  a 
chose  in  action,  which  is  a  mere  legal  demand ;  but  will  leave 
him  to  his  remedy  at  law,  by  an  action  in  the  name  of  the  as- 
signor. If,  however,  special  circumstances  render  it  necessary 
for  the  assignee  to  come  into  a  court  of  equity,  for  relief,  to  pre- 
vent a  failure  of  justice,  he  will  be  allowed  to  bring  suit  in  his 
own  name  upon  a  mere  legal  demand.  Tiernan  v.  Jackson,  5 
Pet.  598;  Toionsend  v.  Carpenter,  11  Ohio,  21 ;  Ontario  Bank 
V.  Mumford,  2  Barb.  Ch.  (N.  Y.)  596 ;  Taylor  v.  Reese,  44  Miss.  89. 

In  most  cases,  bona  fide  assignments  will  be  upheld  in  courts 
of  equity,  but  champerty  and  maintenance,  and  the  purchase  of 
lawsuits,  are  inquired  into  and  restrained  in  equity  as  at  law, 
and  fraud  will  defeat  an  assignment.  See  Anderson  v.  Van  Alen, 
12  Johns.  342;  Edwards  v.  Parkhurst,  21  Vt.  472;  ScJiaferman 
V.  OBrien,  28  Md.  565  ;  Fetrow  v.  Merriwether,  53  111.  275  ;  Rowe 
V.  Beckett,  30  Ind.  154 ;  Martin  v.  Veeder,  20  Wis.  466 ;  Martin 
v.  Clarke,  8  R.  I.  389. 

The  assent  of  the  debtor  is  not  necessary  in  equity  to  give 
validity  to  the  assignment    Spring  v.  South  Carolina  Ins,  Co,y 

Vol.  I.— 47 


370  ASSIGNMENTS. 

8  Wheat.  268,  but  he  should  at  once  have  notice  of  the  assign- 
ment, in  order  to  save  the  rights  of  the  assignee,  in  case  of  a 
bona  fide  payment  to  the  assignor,  or  subsequent  assignee,  with- 
out notice.  Jones  v.  Witter,  13  Mass.  304 ;  Ward  v.  Morrison, 
25  Vt.  593  ;  see  Hamilton  v.  MarJcs,  52  Mo.  78.  Notice  given  by- 
procurement  of  the  assignee  is  sufficient.  Baron  v.  Porter,  44 
Vt.  587.  And  see  Kellogg  v.  Krauser,  14  Serg.  &  R.  (Penn.)  137; 
Meghan  v.  Mills,  9  Johns.  64 ;  Dale  v.  Kimpton,  46  Yt.  76. 

The  assignment  of  a  chose  in  action  is  not  defeated  by  the 
death  of  the  assignor.  In  such  case  the  assignee  is  entitled  to 
the  aid,  and  may  use  the  name  of  the  executor  or  administrator 
of  the  assignor.  Dawes  v.  Boylston,  9  Mass.  337.  On  the  other 
hand,  if  an  executor  promise  an  assignee  of  a  claim  against  the 
testator,  to  pay  it,  in  consideration  of  the  assignment  and  of 
assets,  he  is  personally  liable.  Id. ;  Cutis  v.  Perkins,  12  id.  281. 

By  the  assignment  of  a  chose  in  action,  an  equitable  and  moral 
obligation  to  pay  the  assignee  is  imposed  upon  the  debtor,  which 
is  held  a  good  consideration  for  an  express  promise,  sufficient  to 
authorize  a  suit  in  the  assignee's  ovsm  name.  Lang  v.  FisJce,  2 
Fairf.  (Me.)  385  ;  Currier  v.  Hodgdon,  3  N.  H.  82  ;  Coolidge  v. 
Buggies,  15  Mass.  387 ;  Barger  v.  Collins,  7  Harr.  &  J.  (Md.)  213. 
And,  in  such  a  suit,  the  debtor  is  not  entitled  to  avail  himself  of 
the  set-off  of  any  claims  against  the  assignor.  TJiompson  v. 
Emery,  27  N.  H.  269.  So,  it  is  held  to  make  no  difference  whether 
the  contract  assigned  be  a  specialty  {Compton  v,  Jones,  4  Cow. 
[N.  Y.]  9),  or  a  debt  founded  upon  an  express  or  implied  prom- 
ise by  parol,  as  for  goods  sold  or  services  performed,  or  whether 
the  assignment  is  to  the  assignee  for  his  own  benefit  or  the  ben- 
efit of  creditors.  In  either  case  the  assignee  may  maintain  the 
action  in  his  own  name  against  the  debtor.  Clark  v.  Thompson, 
2  R.  I.  146. 

The  rule  that  the  assignee  of  a  chose  in  action  may  maintain 
an  action  thereon  in  the  name  of  the  assignor  applies  to  a  sealed 
instrument  {Sater  v.  ffendershott,  1  Morris  [Iowa],  118),  and  spe- 
cial authority  to  bring  suit  is  not  required.  lb.  Nor  is  an 
assignee  required  to  show  a  right  in  himself ;  he  is  bound  only  to 
show  a  right  to  recover  in  the  plaintiff  on  the  record,  for  it  is 
this  right  alone  that  can  be  enforced.  JTamilton  v.  Brown,  18 
Penn.  St.  87  ;  Baltmarsh  v.  Boioer,  22  Ala.  221.  If  a  person  hav- 
ing a  demand  due  him  assigns  parts  of  it  to  different  persons,  a 
court  of  equity  has  jurisdiction  of  a  suit  by  one  of  the  assignees, 
to  collect  liis  part  of  the  demand.  Field  v.  Mayor,  etc.,  of  N.  Y., 
6N.Y.  (2Seld.)179. 


ASSIGNMENTS.  371 

It  has  been  held  that  the  debtor  may  offset  a  demand  against 
the  assignee,  although  suit  is  brought  in  the  name  of  the  assignor. 
Corser  v.  Craig,  1  Wash.  (C.  C.)  424.  But  he  cannot  offset  a 
demand  held  by  him  at  the  time  of  the  assignment,  if  he  had^ 
notice  from  the  assignee  that  assignment  was  about  to  be  made, 
and  he  did  not  then  disclose  such  demand.  King  v.  Fowler,  16 
Mass.  397.  So,  in  general,  his  conduct  may  be  such  as  in  equity 
to  deprive  him  of  the  right  of  set-off.  Kemp  v.  McPJierson,  7 
Harr.  &  J.  (Md.)  320. 

A  valid  assignment  of  a  policy  of  insurance,  by  consent  of  the 
underwriters,  or  otherwise,  vests  in  the  assignee  all  the  rights  of 
the  assignor,  legal  and  equitable,  including  that  of  action  ;  biit 
the  instrument,  being  non-negotiable  in  its  character,  is  assign- 
able only  in  equity,  and  an  action  by  the  assignee  must,  at  the 
common  law,  be  brought  in  the  name  of  the  assignor.  See  Jessel 
V.  Williamshurg  Ins.  Co.,  3  Hill  (N.  Y.),  88  ;  Pollard  v.  Somer- 
set Mut.  Fire  Ins.  Co.,  42  Me.  221 ;  State  Mut.  Fire  Ins.  Co.  v. 
Roberts,  31  Penn.  St.  438.  The  only  interest  which  passes  by 
an  assignment  of  a  policy  after  a  loss  has  occurred,  and  after  the 
insurers  have  been  served  with  notice  thereof  and  with  the  pre- 
liminary proofs,  is  the  claim  or  debt  which  the  insured  holds 
against  the  insurers  for  the  amount  of  the  loss.  Hence,  such  an 
assignment  is  not  a  breach  of  a  condition  in  the  policy  that  the 
interest  of  the  assured,  in  the  policy,  is  not  assignable  unless  by 
the  written  consent  of  the  insurers ;  and  that  in  case  of  any  trans- 
fer or  termination  of  such  interest  without  such  consent,  the  pol- 
icy shall  from  thenceforth  be  void.  Carroll  v.  Charter  Oak  Ins. 
Co.,  38  Barb.  402  ;  S  C.  again,  40  id.  292  ;  S.  C.  affirmed,  1  Abb. 
Ct.  App.  (N.  Y.)  316  ;  see  Shearman  v.  Niagara  Fire  Ins.  Co.,  46 
N.  Y.  (1  Sick.)  526  ;  S.  C,  7  Am.  Rep.  380. '  And  it  seems  that  a 
provision  in  a  policy  prohibiting  a  transfer  of  the  interest  of  the 
assured  after  loss  would  be  illegal  and  void.  Courtney  v.  New 
YorTc  City  Ins.  Co.,  28  IBarb.  116 ;  Carroll  v.  Charter  Oak  Ins. 
Co.,  38  id.  402. 

ARTICLE  XII. 

FKAUDULENT   ASSIGNMENTS. 

Section  1.  In  general.  It  is  the  policy  of  the  law  to  protect 
creditors  against  any  acts  or  contracts  by  the  debtor  to  their 
injury,  whether  operating  as  direct  frauds,  or  merely  as  construct- 
ive frauds.  To  this  end  the  English  statute  of  13  Eliz.  ch.  5.  was 
passed,  declaring  all  conveyances  of  goods  and  chattels  not  made 


372  ASSIGNMENTS. 

honafide^  and  upon  good  consideration,  but  in  trust  for  tlie  use 
of  the  person  conveying  them,  or  made  to  hinder,  delay,  or 
defraud  creditors,  to  be  void.  The  essential  provisions  of  this 
statute  have  been  generally  adopted  throughout  the  United  States. 
See  2  Kent's  Com.  440  ;  Robinson  v.  Holt,  39  N.  H.  537 ;  though 
they  have  been  considered  as  only  declaratory  of  the  common  law, 
which,  in  the  opinion  of  Lord  Mansfield,  was  so  strong  against 
fraud,  that  it  alone  would  have  attained  every  end  proposed  by 
this  statute,  and  the  statute  of  27  Elizabeth,  enacted  for  the  pro- 
tection of  subsequent  purchasers  against  prior  fraudulent  alien- 
ations of  the  same  property.  Cadogan  v.  Kennett,  Cowp.  434  ; 
and  see  Adams  v.  BrougMon,  13  Ala.  731  ;  Whittlesy  v. 
McMalion,  10  Conn.  138  ;  Whitmore  v.  Woodward,  28  Me.  392  ; 
Hamilton  v.  Russell,  1  Cranch  (U.  S.),  316  ;  Gardner  v.  Cole,  21 
Iowa,  205 ;  see  Mayor  of  Baltimore  v.  Williams,  6  Md.  235  ; 
Brown  v.  Burlce,  22  Ga.  574.  But  although  the  last-mentioned 
statute  has  been  often  held  affirmative  of  the  common  law,  yet  it 
may  be  regarded  as  a  settled  principle  that  it  extends  only  to 
conveyances  of  real  estate.  Its  provisions  extend  not  to  goods 
and  chattels,  because  the  possession  of  these,  which  is  ever 
supposed  to  accompany  the  transfer  of  them,  is  a  notorious  evi- 
dence of  title,  and  sufficient  to  guard  subsequent  purchasers 
from  the  danger  of  suffering  by  prior  voluntary  conveyances  of 
them.  Sewall  v.  Glidden,  1  Ala.  52 ;  Teasdale  v.  Atkinson,  2 
Brev.  (S.  C.)  48.  All  the  doctrines  of  the  courts  of  law  and  equity, 
concerning  the  voluntary  settlements  of  real  estates,  and  the  pre- 
sumptions of  fraud  arising  from  them,  are,  however,  held  appli- 
cable to  chattels ;  and  a  gift  of  them  is  equally  fraudulent  and 
void  against  existing  creditors.  2  Kent's  Com.  440  ;  Bayard  v. 
Hoffman,  4  Johns.  Ch.  (N.  Y.)  450.  The  full  discussion  of  this 
subject  will  appropriately  fall  under  the  head  of  Statute  of 
Frauds,  which  see. 


ASSUMPSIT.  373 

CHAPTER  XVI. 

ASSUMPSIT. 


TITLE  I. 

OF  THE  ACTION  OF  ASSUMPSIT,  AND  WHEN  IT  MAY  OR 
MAY  NOT  BE  MAINTAINED. 


ARTICLE  I. 

NATURE    AND   DEFINITION  OF. 

Section  1.  In  general.  Assumpsit,  in  the  law  of  contracts,  is 
an  undertaking,  either  express  or  implied,  to  perform  a  parol 
agreement.  1  Bouv.  Diet.  169.  It  is  the  undertaking  or  promise 
upon  which  the  action  of  assumpsit  may  be  brought.  Milward 
V.  Ingram,  2  Mod.  43.  Express  assumpsit  is  an  undertaking 
made  orally,  or  by  writing  not  under  seal,  to  perform  an  act  or 
to  pay  a  sum  of  money  to  another.  Implied  assumpsit  is  an 
undertaking  presumed  in  law  to  have  been  made  by  a  party 
from  hi^*  conduct,  although  he  has  not  made  any  express  prom- 
ise. 1  Bouv.  Diet.  159.  But,  in  reference  to  this  latter  species 
of  assumpsit,  or  promise,  it  has  been  said,  "  that  the  notion  of 
promises  in  law  is  a  metaphysical  notion,  for  the  law  makes  no 
promise  but  where  there  is  a  promise  of  the  party  "  (Lord  Holt, 
in  Starke  v.  Clieeseman,  1  Ld.  Raym.  638) ;  and  the  only  real 
distinction  between  an  express  undertaking  and  one  implied  in 
law  would  seem  to  be  in  regard  to  the  mode  of  proof,  which 
properly  belongs  to  the  law  of  evidence.  See,  ante,  72,  73,  74, 
§4. 

In  practice,  assumpsit  is  a  form  of  action  given  by  law  to  a 
party  injured  by  the  breach  or  non-performance  of  a  parol  or 
simple  contract  legally  entered  into.  See  Rann  v.  Hughes,  7  T. 
R.  351,  note ;  Ballard  v.  Walker,  3  Johns.  Cas.  60  ;  Ward  v. 
Warner,  8  Mich.  608.  It  lies  upon  contracts,  either  express  or 
implied  ;  and  as  the  law  always  implies  a  promise  or  contract  to 
do  that  which  a  party  is  legally  bound  to  perform,  the  action 
will  be  found  to  be  of  very  extended  application.  See,  ante,  p. 
73 ;  1  Chitt.  PL  98,  99  ;  McQloskey  v.  Miller,  72  Penn.  St.  151 ; 


374  ASSUMPSIT. 

Force  v.  Haines^  17  N.  J.  (Law)  385.  "  The  breach  of  all  simple 
contracts,  whether  verbal  or  written,  express  or  implied,  for  the 
payment  of  money,  or  for  the  performance  or  omission  of  any 
other  act,"  is  said  to  be  remediable  by  action  of  assumpsit.  1 
Chitt.  PI.  Ill,  112.  It  is  technically  an  action  on  the  case  {Car- 
ter V.  Wldte,  32  111.  509),  deriving  its  name  from  the  emphatic 
Latin  word  of  the  clause  formerly  used  in  the  writ  and  declara- 
tion, expressive  of  the  defendant's  undertaking.  See  1  Chitt. 
PI.  Ill,  112.  In  some  of  the  older  books  it  is  called  an  "action 
upon  the  case  upon  assumpsiV  See  Comyn's  Dig.  In  assump- 
sit, damages  alone  are  the  object  of  the  action,  and  the  action 
differs  from  the  action  of  deht^  in  this,  that  the  amount  claimed 
need  not  be  liquidated  {Rann  v.  Hughes,  7  T.  R.  351,  note;  Rud- 
der V.  Price,  1  H.  Bla.  547,  551.  See  Moses  v.  Macferlan,  2  Burr. 
1008) ;  and  it  also  differs  from  covenant,  in  this,  that  it  does  not 
require  a  contract  under  seal  to  support  it,  and  will  not  lie  upon 
any  contract  under  seal.  lb.  North  v.  Nichols,  37  Conn.  375 ; 
Slade's  Case,  4  Coke  R.  92,  h  ;  Toussaint  v.  Martinnant,  2  T. 
R.  100.  It  is  a  general  rule  that  assumpsit  will  not  lie  where 
there  is  a  remedy  of  a  higher  nature.  Baber  v.  Harris,  9  Ad, 
&  El.  532  ;  ScJilencker  v.  Moxsy,  3  Barn.  &  C.  789 ;  Selw.  N.  P 
55.  It  is,  however,  said  to  be  a  liberal  and  equitable  action, 
applicable  to  almost  every  case  where  money  has  been  received, 
which,  in  equity  and  good  conscience,  ought  to  be  refunded. 
Thompson  v,  Thompson,  5  W.  Ya.  1 90. 

§  2.  Promise.  In  order  to  support  assumpsit  there  must  be  a 
promise  or  undertaking  on  the  part  of  the  defendant,  express  or 
implied,  for  a  promise  or  contract  is  of  the  very  gist  of  the 
action.  Wings  v.  Brown,  12  Rich.  (S.  C.)  279 ;  Winston  v. 
Francisco,  2  Wash.  (Va.)  187;  Lanchester  v.  Frewer,  2  Bing. 
361 ;  Candler  v.  Rossiter,  10  Wend.  487. 

§  3.  Consideration.  Every  promise,  for  the  non-performance 
of  which  an  action  of  assumpsit  may  be  maintained,  must,  how- 
ever, be  founded  on  a  sufficient  consideration.  Nudum  pactum, 
or  an  agreement  to  do  or  pay  any  thing  on  one  side,  without  any 
compensation  on  the  other,  is  wholly  void  in  law,  it  being  a 
maxim  in  the  common  law  of  England,  as  well  as  in  the  civil 
law,  that  ex  nudo  pacto  non  oritur  actio.  See  Broom's  Leg.  Max. 
745.  Thus,  if  a  man  promises  another  to  give  him  so  much 
money  on  a  future  day,  or  to  build  a  house,  without  considera- 
tion, this  is  a  naked  promise,  and  will  not  oblige.  Bac.  Abr., 
Assurap.  C.     So,  an  agreement  to  remain  with  a  person  for  the 


ASSUMPSIT.  375 

purpose  of  learning  a  trade  or  business,  is  not  binding,  unless 
such  person  has  bound  himself  to  teach  it,  or  there  be  some 
other  consideration  for  it.  Lees  v.  WJiitcomb,  5  Bing.  34.  And 
so  of  a  promise  to  pay  the  debt  of  a  person  illegally  arrested,  in 
consideration  of  his  being  set  at  liberty.  Atkinson  v.  Settree^ 
Willes,  482.  However  binding  in  honor  and  conscience  such  a 
promise  may  be,  it  does  not  create  a  legal  responsibility.  See 
Elsee  V.  Gatward,  5  T.  R.  143, 149  ;  Balfe  v.  West,  76  Eug.  Com. 
Law  (18  0.  B.)  466.  But  any  act  of  the  plaintiff  from  wffich  the 
defendant  derives  a  benefit  or  advantage,  or  any  labor,  detriment 
or  inconvenience  sustained  by  the  plaintiff,  however  small  the 
benefit  or  inconvenience  may  be,  is  a  sufficient  consideration,  if 
such  act  is  performed,  or  such  inconvenience  suffered,  by  the 
plaintiff  with  the  consent,  either  express  or  implied,  of  the 
defendant.  1  Selw.  N.  P.  55 ;  and  see  Hulse  v.  Hulse,  84  Eng. 
Com.  Law  (17  C.  B.)  711 ;  Dmls  v.  Mshett,  100  id.  (10  C.  B.  N. 
S.)  752  ;  Eaigh  v.  Brooks,  10  Ad.  &  El.  309  ;  Child  v.  Morleij, 
8  T.  R.  610.  For  a  full  discussion  of  the  subject  of  considera- 
tion, see  ante,  90,  chap.  II,  art.  VI. 

It  has  been  sometimes  held  that  it  is  necessary  that  the  con- 
sideration on  which  the  promise  of  the  defendant  is  founded 
should  mov^  from  the  plaintiff,  or,  in  other  words,  that  there 
must  be  a  privity  of  contract  between  the  plaintiff  and  the 
defendant ;  and  if  the  plaintiff  be  a  stranger  to  the  consideration, 
he  cannot  maintain  assumpsit.  See  Crow  v.  Rogers,  1  Str.  592  ; 
Price  V.  Easton,  4  B.  &  Ad.  433  ;  Shear  v.  Overseers  of  Rills- 
dale,  13  Johns.  495  ;  Cabot  v.  Haskins,  3  Pick.  83,  92.  But  we 
have  seen,  ante,  103,  104,  that  a  different  rule  now  prevails.  A 
consideration  altogether  executed  and  past,  is  not  sufficient  to 
maintain  an  assumpsit ;  though  if  it  were  moved  by  a  prece- 
dent request,  it  is  good,  and  amounts  to  a  binding  promise,  ante, 
109,  110.  Bac.  Abr.,  Assump.,  D.  See  Osborne  v.  Rogers,  1 
Wms.  Saund.  264,  n ;  King  v.  8ears,  2  Cr.  M.  &  R.  48 ;  Hop- 
kins V.  Logan,  4  Mees.  &  W.  241. 

ARTICLE  IL 

SPECIAL  Ofi  GENEEAL  ASSUMPSIT. 

Section  1.  Special  assumpsit.  We  have  seen  that  assumpsit 
lies  upon  ev^ry  kind  of  simple  contract,  whether  express  or 
implied.  Ante,  art.  1,  §  1.  Corresponding  to  this  distinction  in 
contracts  as  express  or  implied,  the  action  of  assumpsit  may 


376  ASSUMPSIT. 

be  divided  into  special  and  general  assumpsit.  Special  assump' 
sit  is  an  action  brought  upon  the  express  contract  or  promise  of 
the  defendant.  This  is  the  ground  of  the  action,  and  unless  the 
plaintiff  can  show  that  he  has  fulfilled,  with  legal  sufficiency 
and  exactness,  all  the  terms  of  the  contract,  he  can  recover 
nothing.  See  Cutter  v.  Powell,  2  Smith's  Lead.  Cas.  (7th  Am. 
ed.)  61 ;  Dermott  v.  Jones,  23  How.  231 ;  S.  C,  2  Wall.  1,  9  ; 
Morford  v.  Mastin,  6  Mohr.  (Ky.)  609;  S.  C,  3  J.  J.  Marsh.  89  ; 
Gregory  v.  IlacJc,  3  Hill  (N.  Y.),  380  ;  Robertson  v.  Lynch,  14 
Johns.  451 ;  Taft  v.  luTiahitants  of  Montague,  14  Mass.  282  ; 
Russell  V.  Gilmore,  54  111.  147 ;  Catliolic  Bishop  of  Chicago  v. 
Bauer,  62  id.  188.  If,  however,  the  performance  on  the  part  of 
the  plaintiff  has  been  according  to  the  terms  of  the  contract, 
and  has  resulted  in  an  available  and  practicable  work  of  the 
kind  required,  so  that  he  is  capable  of  maintaining  his  special 
action  at  all,  he  is  entitled,  at  common  law,  to  recover  the  whole 
compensation  fixed  by  the  contract,  and  the  defendant  must 
resort  to  a  cross  action,  to  recover  damages  for  faults  in  the 
manner  of  performance,  or  for  breaches  of  a  warranty.  Cutter 
V.  Powell,  2  Smith's  Lead.  Cas.  (7th  Am.  ed.)  61 ;  Eoerett  v.  Or  ay, 
1  Mass.  101.  See  Recoupment.  A  recovery  in  such  case  may, 
of  course,  be  defeated  by  proof  of  fraud;  for  ftaud  vitiates 
every  contract  into  which  it  enters.  See  Dermott  v.  Jones,  2 
Wall.  1,  9.  But  where  performance  has  been  accepted  upon  a 
contract  of  sale,  the  defendant  is  not  at  liberty  to  set  up  the 
defense  of  fraud,  unless  he  has  returned  the  article,  or  given 
notice  of  the  defect  when  discovered.  If  he  retains  the  prop- 
erty, he  cannot  treat  the  sale  as  void  {Burton  v.  Stewart,  3 
Wend.  236)  unless  the  thing  sold  was  absolutely  worthless, 
and  the  plaintiff  could  not  possibly  have  been  injured  by  ita 
non-return.  Id.;  Yan  Epps  v.  Harrison,  5  Hill  (N.  Y.),  63; 
Kase  V.  John,  10  Watts  (Penn.),  107 ;  Thornton  v.  Wynn,  12 
Wheat.  183.  It  follows  that  on  a  sale,  special  assumpsit  can 
only  be  defeated  for  fraud  where  the  article  has  been  returned, 
or  is  proved  to  be  wholly  worthless.  Id. ;  Cutter  v.  Powell,  2 
Smith's  Lead.  Cas.  (7th  Am.  ed.)  61,  63,  64. 

§  2.  General  assumpsit.  The  action  of  general  assumpsit  rests 
on  wholly  different  ground  from  that  of  special  assumpsit,  and 
is  brought  upon  the  promise  or  contract  implied  by  law  in  certain 
cases.  It  results,  however,  from  the  nature  of  the  action,  that 
when  the  plaintiff  declares  generally,  the  defendant  may  show  in 
reduction  of  damages,  every  thing  that  goes  directly  to  the  con- 


ASSUMPSIT.  377 

sideration,  and  immediately  affects  the  value  of  tlie  work ;  for 
the  assumpsit  which  the  law  implies,  whether  in  quantum  mer- 
uit, or  indebitatus,  is  always  commensurate  with  the  actual  final 
value  of  the  article  or  work.  Id.  ;  and  see  Basten  v.  Butter,  7 
East,  479;  Farnsworth  v.  Garrard,  1  Camp.  38;  Mondel  v. 
Steele,  8  M.  &  W.  858  ;  Mgge  v.  Burlidge,  15  id.  598  ;  King  v. 
Paddock,  18  Johns.  141 ;  Grant  v.  Button,  14  id.  377  ;  Heck  v. 
Shener,  4  Serg.  &  R.  (Penn.)  249.  So  it  is  well  established  by 
the  American  authorities,  that  when  the  plaintiff  brings  general 
assumpsit,  when  there  has  been  a  special  contract,  the  defend- 
ant may  give  in  evidence  in  reduction  of  damages,  a  breach  of 
warranty,  or  a  fraudulent  misrepresentation,  without  a  return  of 
the  article.  Culver  v.  Blake,  6  B.  Monr.  (Ky.)  528 ;  Mixer  v. 
Cohurn,  11  Mete.  (Mass.)  559,  561 ;  Steigleman  v.  Jeffries,  1  Serg. 
&  R.  477;  McAllister  v.  Reab,  4  Wend.  483  ;  S.  C.  affirmed,  8 
id.  109  ;  Batter  man  v.  Pierce,  3  Hill  (N.  Y.),  172 ;  see  Prayer 
V.  Randolp7i,  4  Harr.  (Del.)  454,  456  ;  Henning  v.  Van  Hook,  8 
Humph.  (Tenn.)  678,  681. 

ARTICLE  III. 

WHEN  THE  ACTION  LIES. 

Section  1.  In  general.  It  is  proposed  in  this  place  to  notice 
some  of  the  cases  in  which  the  action  of  assumpsit  will  lie,  with- 
out regard  to  the  form  of  the  action  as  general  or  special.  Thus, 
it  may  be  stated  generally,  that  the  action  lies  on  promises  to 
pay  or  repay  money,  or  to  do  or  forbear  some  other  act ;  as,  for 
goods  sold  and  delivered  ;  for  work  and  labor  ;  use  and  occupa- 
tion, and  the  like  ;  for  money  lent  or  money  paid ;  for  money 
had  and  received,  and  on  an  account  stated.  Each  of  these  sub- 
divisions will  be  fully  treated  of  under  distinct  heads  in  this 
work,  and  need  not,  therefore,  be  further  enlarged  upon  in  this 
connection. 

Assumpsit  is  held  to  be  the  proper  remedy  for  the  breach  of  a 
contract  under  seal,  where  the  performance  has  been  enlarged 
by  parol.  Smith  v.  Smith,  45  Vt.  433 ;  and  see  Baird  v.  Bla- 
graoe,  1  Wash.  (Va.)  170.  And  the  general  rule  is,  that,  for 
money  accruing  due  under  the  provisions  of  a  statute,  the  action 
may  be  supported,  unless  another  remedy  is'  expressly  given. 
Paiolet  V.  Sandgate,  19  Vt.  621 ;  Hillshorough  v.  Londonderry, 
43  N.  H.  451.  And  see  Dutchess  Cotton  Manufactory  v.  Daois, 
14  Johns.  238;  Bath  v.  Freeport,  5  Mass.  326.  And  the  action 
Vol.  I.  —  48 


378  ASSUMPSIT. 

will  lie  for  goods  and  chattels  {FalmoutJi  v.  Penrose,  6  B.  &  C. 
358) ;  as  for  tobacco,  where  the  contract  is  for  the  payment  of 
tobacco.  Marshall  v.  McPliersoUy  8  Gill.  &  J.  (Md.)  333.  See, 
also,  Hill  V.  Wallace,  Add.  (Penn.)  145.  And  where  one  legatee 
receives  money  belonging  to  another,  assumpsit  lies  to  recover 
it.  Durdon  v.  Gaslcell,  2  Yeates  (Penn,),  268.  So,  the  fees  of  a 
justice  of  the  peace,  appearing  by  his  docket,  may  be  recovered 
in  assumpsit  for  work  and  labor,  and  are  earned  when  judg- 
ment is  recovered.  Harris  v.  Qhristian,  10  Penn.  St.  233.  It  also 
lies  for  breach  of  warranty,  express  or  implied,  in  the  sale  or 
exchange  of  chattels  {Timrod  v.  Slioolhred,  1  Bay.  [S.  C]  324; 
Hillman  v.  Wilcox,  30  Me.  170 ;  Evertson  v.  Miles,  6  Johns.  138 ; 
Kimhall  v.  Cunningham,  4  Mass.  505 ;  Russell  v.  Oillmore,  54 
111.  147) ;  or  for  the  breach  of  a  contract  of  bailment  {Bank  of 
MoMle  V.  Huggins,  3  Ala.  206) ;  or  to  recover  for  the  labor  of 
servants  {Janes  v.  Buzzard,  Hempst.  240) ;  or  to  recover  the 
whole  of  an  account,  though  covenant  might  have  been  main- 
tained upon  some  of  the  items  thereof  {State  v.  Jennings,  10 
Ark.  428) ;  or  to  recover  the  amount  of  a  bill  of  exchange, 
given  for  the  price  of  goods  {Sweeny  v.  Willing,  6  Mo.  174) ; 
or  to  recover  the  consideration  money  for  land  sold.  Shepard 
V.  Little,  14  Johns.  210 ;  Wood  v.  Gee,  3  McCord  (S.  C),  421. 
So,  it  will  lie  on  a  balance  struck,  and  a  promise  to  pay  money 
due  on  a  specialty,  on  a  new  consideration  {Miller  v.  Watson, 
7  Cow.  39  ;  Gilson  v.  Stewart,  7  Watts  [Penn.],  100);  on  an  express 
promise  by  a  devisee  to  pay  a  specific  sum  charged  on  the  land 
devised  {Kelsey  v.  Beyo,  3  Cow.  133  ;  Tole  v.  Hardy,  6  id.  333) ; 
on  a  promise  to  pay  a  debt  barred  by  the  statute  of  limitations 
{Young  Y.Mackall,  3  Md.  [Ch.]  398) ;  for  unpaid  installments  of 
a  subscription  to  the  stock  of  an  incorporated  company  {Ban- 
ington  v.  Pittsburgh,  etc.,  JR.  P.  Co.,  34  Penn.  St.  358) ;  or  to 
recover  from  a  bailee  for  hire,  the  value  of  goods  and  chattels 
delivered  to  him,  and  which  he  has  converted  to  his  own  use. 
Barker  v.  Cory,  15  Ohio,  9.  And  see  Gilmore  v.  Wilbur,  12 
Pick.  120 ;  Guthrie  v.  Wickliffe,  1  A.  K.  Marsh.  (Ky.)  83;  King 
v.  Mc Daniel,  4  Call  (Va.),  451 ;  Johnson  v.  Reed,  8  Ark.  202. 

Assumpsit  lies  against  a  husband  or  father  for  necessary  sup- 
plies furnished  to  his  wife  or  child,  whom  he  is  bound  to  sup- 
port, and  has  refused  or  neglected  to  supply,  notwithstanding 
his  protestations  against  his  liability  ( Van  Valkinburgh  v. 
Watson,  13  Johns.  480;  Hunt  v.  TJiompson,  3  Scam.  [Ill]  179; 
Bainbridge  v.  Pickering,  2  Wm.  Bla.  1325) ;  also,  against  execu« 


ASSUMPSIT.  379 

tors  for  taxes  due  from  their  testators  {BulTcley  v.  ClarTCy  2 
Root  [Conn.],  60) ;  against  a  common  carrier,  to  recover  the 
value  of  goods  coming  to  his  possession  by  his  tortious  act,  and 
which  have  been  destroyed  v^hile  in  his  custody  {Cooper  v. 
Berry,  21  Ga.  526) ;  against  a  collector,  for  taxes  collected  by 
him  {Commissioners  v.  Harrington,  1  Blackf.  [Ind.]  260) ; 
against  an  attorney  for  negligence  in  transacting  the  business 
of  his  profession  {Church  v.  Mumford,  11  Johns.  479 ;  Stimpson 
V.  Sprague,  6  Me.  471 ;  Ellis  v.  Henry,  5  J.  J.  Marsh.  [Ky.]  248) ; 
against  a  bailiff,  of  goods  on  a  general  promise  to  account 
{Canfield  v.  Merrick,  11  Conn.  425) ;  against  a  company  for  goods 
furnished  {Cram  v.  Bangor  House,  12  Me.  354) ;  against  the 
alienee  of  a  purchaser,  or  other  person  accepting  land  expressly 
charged  with  the  payment  of  money,  as  the  means  of  enforcing 
payment  out  of  the  land  {Be  Haven  v.  Bartholomew,  57  Penn. 
St.  126) ;  against  a  moneyed  corporation  for  refusing  to  permit 
a  transfer  of  its  stock  upon  the  books  of  the  corporation,  when 
such  a  transfer  is  necessary  to  give  validity  to  the  transaction 
{Kortwright  v.  Buffalo  Commercial  Baiik',  20  Wend.  91 ;  S.  C. 
affirmed,  22  id.  348) ;  against  an  administrator  for  a  distributive 
share  in  the  residuum  of  the  testator's  estate  {Hollohack  v.  Van 
BusMrTc,  4  Dall.  147) ;  or  against  one  who  acquiesces  in  and 
implicitly  sanctions  an  act  of  another,  done  on  his  account, 
which  act,  if  done  by  himself,  would  amount  to  an  undertaking 
in  law  {^filler  v.  Creyon,  2  Brev.  [S.  C.j  108) ;  and  it  lies  to 
recover  upon  bonds  made  by  a  municipal  corporation  in  aid  of 
a  railroad.  Town  of  Queenshury  v.  Culver,  19  Wall.  83,  92,  93. 
Asswnpsit  will  likewise  lie  by  an  assignee  of  a  pretended  de- 
mand, if  he  was  induced  to  pay  money  in  consideration  of  the 
assignment  by  false  and  fraudulent  representations  that  the 
demand  was  valid,  to  recover  back  the  sum  paid  {Burton  v. 
Driggs,  20  Wall.  125,  136) ;  by  one  partner  against  his  copart- 
ner, for  money  paid  him,  over  and  above  his  proportion  of  the 
profits,  on  dissolution  and  adjustment  of  the  partnership  con- 
cerns {Bond  v.  Hays,  12  Mass.  34 ;  Williams  v.  Henshaw,  11 
Pick.  79) ;  by  the  purchaser  of  an  article  stolen  by  the  vendor 
which  is  reclaimed  by  the  owner,  for  the  purchase-money  ; 
although  the  vendor  has  not  been  tried  for  the  theft  {Barton  v. 
Faherty,  3  Iowa,  327) ;  by  a  tenant  in  common  against  his  co- 
tenant  who  has  received  more  than  his  share  of  the  profits  of  the 
property  owned  in  common  {Dyer  v.  Wilbur,  48  Me.  287 ;  Jones 
V.  Harraden,  9  Mass.  450 ;  see  Dresser  v.  Dresser,  40  Barb. 


380  ASSUMPSIT. 

300);  or  wliere  he. receives  the  whole  amount  of  damages  assessed 
for  land,  owned  in  common  and  taken  for  public  use  {Brinck- 
erhoff  V.  Wemple,  1  Wend.  470),  or  where  he  has  sold  the  com- 
mon property,  and  received  all  the  money.  Coles  v.  Coles^  15 
Johns.  159  ;  Oar  diner  Manuf.  Co.  v.  Reald^  5  Me.  381.  So,  it 
will  lie  by  an  assignee  of  bank  shares,  against  the  bank,  for  a 
wrongful  refusal  to  issue  to  him  a  certificate  of  such  shares 
{Hill  V.  Pine  River  Bank^  45  IsT.  H.  300) ;  and  it  will  lie  for  work 
done  under  a  sealed  contract,  though  not  done  according  to  such 
contract,  if  accepted  by  him  for  whom  it  was  done  ( Watchman 
V.  CrooJc,  5  Gill  &  J.  [Md.]  240);  or  against  a  defendant  in  an  ex- 
ecution, through  whose  instrumentality  the  property  of  a  third 
person  has  been  levied  upon  and  sold,  to  satisfy  a  debt  against 
himself.  HacMey  v.  Swigert,  5  B.  Monr.  (Ky.)  86.  So,  it  lies 
for  tolls  {Quincy  Canal  v.  Newcomh,  7  Mete.  [Mass.]  276; 
Central  Bridge  Corporation  v.  AbhoU,  4  Cush.  473  ;  Seward 
V.  Balcer^  1  T.  R.  626) ;  or  by  a  broker  for  his  commissions 
in  procuring  a  charter-party  for  a  vessel  {Bruce  v.  Par- 
sons^ 12  Cush.  591) ;  or  against  an  innkeeper  for  the  loss 
of  baggage  through  the  negligence  of  his  servant  or  agent  {Bra- 
dish  V.  Henderson,  1  Dane  Abr.  310 ;  Dickinson  v.  Winchester, 
4  Cush.  115) ;  or  where  the  respective  claims  of  part  owners  of  a 
vessel  are  liquidated,  to  recover  the  balance  due  to  either 
{Chadbourne  v.  Duncan,  36  Me.  89);  or  where  there  is  an  express 
agreement  to  pay  rent,  to  recover  it ;  without  proving  occupancy 
of  the  premises  leased  {Slier  v.  Surget,  18  Miss.  154) ;  and  where 
a  person  accepts  a  deed-poll  containing  a  reservation  of  certain 
duties  to  be  performed  by  the  grantee,  assumpsit  lies  for  the 
breach  of  those  duties.  Newell  y.  Hill,  1  Mete.  (Mass.)  117; 
Ouild  V.  Leonard,  18  Pick.  511. 

Where  a  contract  for  the  sale  of  land  is  executed  by  a  convey- 
ance of  the  land,  assumpsit  will  lie  for  the  purchase-money 
{Butler  V.  Lee,  11  Ala.  885  ;  Shephard  v.  Little,  14  Johns.  210  ; 
Goodwin  v.  Gilbert,  9  Mass.  510) ;  and  the  acknowledgment  of 
payment,  contained  in  the  deed,  is  not  conclusive  evidence  to  de- 
fea't  the  action.  O Neale  v.  Lodge,  3  Harr.  &  M.  (Md.)  433  ;  Wat- 
son V.  BlainCy  12  Serg.  &  R.  (Penn.)  131 ;  Bowen  v.  Bell,  20  Johns. 
338  ;  Wilkinson  v.  Scott,  17  Mass.  249.  But  the  action  cannot 
be  maintained  if  the  conveyance  is  not  made  until  after  the  ac- 
tion is  commenced.  Butler  v.  Lee,  11  Ala.  885  ;  see  Gordon  v. 
Phillips,  13  id.  565.  If  two  buy  land,  and  it  is  sold  again  for 
their  mutual  benefit,  assumpsit  may  be  sustained  by  one  of  them 


ASSUMPSIT.  381 

to  recover  his  share  of  the  price.  Brubaker  v.  Robinson^  3 
Penn.  295.  And  where  two  partners  agree  with  the  third  that, 
in  consideration  of  his  retiring  from  the  concern,  and  surrender- 
ing to  them  his  interest  in  the  partnership  effects,  they  will  pay 
a  particular  debt,  the  creditor  may  recover  against  the  two  in 
assumpsit,  as  if  the  promise  had  been  made  to  him.  Bellas  v. 
Fagely,  19  Penn.  St.  273.  So,  where  a  gift  causa  mortis  was 
made  to  two,  and  was  converted  by  the  administrator  of  the  de- 
ceased, assumpsit  was  held  the  proper  remedy,  and  the  plain- 
tiffs in  such  case  should  join  in  the  action.  Michener  v.  Dale, 
23  id.  59. 

Where  several  persons  agree  together  in  an  instrument  of 
writing  to  contribute  money  for  the  purchase  of  certain  land, 
and  for  the  erection  of  mills  thereon,  and  some  of  them  proceed 
and  accomplish  the  undertaking,  they  may  recover  in  assumpsit 
of  a  party  refusing  to  contribute  the  sum  subscribed  by  him. 
Pillshury  v.  Pillshury,  20  N.  H.  90.  And  a  person  who  sub- 
scribes for  the  stock  in  a  corporation  is  liable  in  assumpsit  to 
the  corporation  for  the  sum  so  subscribed.  Stokes  v.  Turnpike 
Co.,  6  Humph.  (Tenn.)  241.  So,  an  agreement  to  take  and  1511  a 
given  number  of  shares  in  an  incorporated  company  is  equiva- 
lent to  an  agreement  to  take  and  pay  for  such  shares,  and  as- 
sumpsit will  lie  upon  it  for  the  stipulated  price  of  the  shares. 
Penohscott  v.  Dunn,  39  Me.  587 ;  Bangor  Bridge  Co.  v.  Mc- 
Mahon,  10  id.  478 ;  Ogdensburgh,  Home  <&  Clayton  R.  R.  Co.  v. 
Frost,  21  Barb.  641. 

In  the  case  of  an  adjustment  of  accounts  between  a  cestui  que 
trust  and  his  trustee,  and  a  promise  on  the  part  of  the  latter  to 
pay  the  amount  ascertained  to  be  due,  the  former  may  maintain 
assumpsit  for  its  recovery.  Nelson  v.  Howard,  5  Md.  327.  But 
where  the  amount  is  undetermined,  and  there  has  been  no 
promise  of  payment  by  the  trustee,  a  court  of  equity  alone  has 
jurisdiction.  Id.     See  Dias  v.  Brunell,  24  Wend.  9. 

Assumpsit  also  lies  in  favor  of  the  heirs  at  law  to  recover 
against  the  administrator,  the  rents  and  profits  of  the  real  estate 
of  a  deceased  insolvent  debtor.  Kimball  v.  Sumner,  62  Me.  305. 
And  it  will  lie  if  the  defendant  refuse  to  convey  to  the  plaintiff 
specified  property,  agreeably  to  an  award  of  arbitrators,  within 
the  time  limited  therefor.  Gerry  v.  Eppes,  62  id.  49.  So,  when 
there  is  a  legal  duty  enjoined  by  competent  authority  upon  a 
municipal  corporation,  assumpsit  maj^  be  maintained  to  enforce 
its  performance.    Farwell  v.  Rockland,  2  id.  296.    And,  if  a 


382  ASSUMPSIT. 

person,  to  save  his  property  from  being  sold  on  legal  process, 
pays  a  debt  which  another  is  legally  bound  to  pay,  he  may 
maintain  an  action  against  such  other  person  upon  an  implied 
assumpsit     Nichols  v.  Buckram^  117  Mass.  488. 

§  2.  General  indeMtatus  assumpsit,  when  proper.  The  form 
of  the  action  of  assumpsit  known  as  general^  or  indeMtatus 
assumpsit  is  founded  upon  what  the  law  terms  an  implied 
promise  on  the  part  of  the  defendant  to  pay  what  in  good  con- 
science he  is  bound  to  pay  to  the  plaintiff.  Where  the  case 
shows  that  it  is  the  duty  of  the  defendant  to  pay,  the  law  imputes 
to  him  a  promise  to  fulfill  that  obligation.  But  such  a  promise 
must  always  be  expressly  charged  in  the  declaration,  and  unless 
so  alleged  the  action  cannot  be  maintained.  Curtis  v.  Fiedler^ 
2  Black.  461,  478 ;  United  States  v.  Russell  13  Wall.  623,  630 ; 
Candler  v.  Rossiter^  10  Wend.  487.     See,  ante^  art.  II,  §  2. 

But  although  indebitatus  assumpsit  is  founded  upon  an 
implied  promise,  and  while  it  is  true  that  there  is  no  liability  by 
implication  of  law  upon  an  express  contract,  executory  in  its 
provisions,  yet  if  there  has  been  full  performance,  and  nothing 
remains  to  be  done  but  the  payment  of  the  money,  or,  if  there 
has  been  only  part  performance,  and  the  remainder  has  been 
waived  or  prevented,  and  the  work  performed  has  been  accepted, 
a  recovery  may  be  had  for  the  contract  price  of  the  service  per- 
formed, under  an  indeMtatus  assumpsit.  Catholic  Bishop  of 
Chicago  v.  Bauer,  62  111.  188.  And  see,  generally,  in  support  of 
this  doctrine.  Cutter  v.  Foioell,  2  Smith's  Lead.  Cas.  23,  27  ;  id. 
(7th  Am.  Ed.)  22,  49  ;  Pordage  v.  Cole,  1  Wms.  Saund.  320,  note ; 
Peeters  v.  Opie,  2  id.  352,  note ;  Ohio  Canal  Co.  v..  Knapp,  9 
Pet.  541,  566 ;  Dermott  v.  Jones,  2  Wall.  1 ;  Bait.  &  Ohio  R.  R. 
V.  Potty,  14  Gratt.  (Va.)  447  ;  Allen  v.  McNeio,  8  Humph. 
(Tenn.)  46 ;  Felton  v.  Dickinson,  10  Mass.  287  ;  Ridgley  v. 
Crandall,  4  Md.  441 ;  Carson  v.  Allen,  6  Dana  (Ky.),  395 ;  8tout 
V.  St.  Louis  Tribune  Co.,  52  Mo.  342..  So,  where  work  done 
under  a  special  agreement  is  not  finished  at  the  time  agreed 
upon,  but  is  proceeded  in  afterward,  with  the  assent  of  the  party 
for  whom  the  work  is  being  done,  indeMtatus  assumpsit  lies 
to  recover  for  the  work  done  ;  and  if  neither  party  be  the  faulty 
cause  of  delay,  the  recovery  will  be  according  to  the  rate  of 
compensation  fixed  by  the  contract.  Merrill  v.  Ithaca,  etc.,  R. 
R.  Co.,  16  Wend.  586  ;  Billon  v.  Masterion,  7  Jones  &  Sp.  (N. 
Y.)  133.  But  if  the  delay  be  caused  by  the  defendant,  with  a 
design  to  hinder  the  plaintiff's  performance  of  the  agreement, 


ASSUMPSIT.  383 

who,  nevertheless,  proceeds,  until,  in  despair,  he  finally  aban- 
dons the  work,  he  is  not  confined  to  such  rate  of  compensation, 
but  may  recover  as  much  as  his  labor  is  worth.  Id.;  Hoagland 
V.  Moore,  2  Blackf.  (Ind.)  167. 

If  there  is  an  express  agreement,  and  it  contains  nothing  more 
than  the  law  will  imply,  an  action  may  be  sustained  on  the 
implied  agreement.  Thus,  although  a  surety  may  have  a  special 
promise  of  indemnity,  not  under  seal,  from  the  principal,  yet  if 
he  has  paid  the  demand  for  which  he  was  surety,  he  may  sue  for 
indemnity  in  indebitatus  assumpsit.  Oihhs  v.  Bryant,  1  Pick. 
(Mass.)  118;  M  Williams  v.  Willis,  1  Wash.  (Va.)  199.  So,  if 
both  parties  have  departed  from  an  express  agreement  the  law 
raises  an  implied  one.  As  where  A  agreed  to  deliver  stones  to 
B,  to  be  paid  for  half  in  money  and  half  in  goods,  and  the 
stones  were  delivered  by  A,  and  some  of  the  goods  were  deliv- 
ered by  B,  and  B  sued  and  recovered  for  those  goods,  it  was 
held  that  A  might  recover  for  the  stones  in  indebitatus  assump- 
sit. Goodrich  v.  Lafflin,  1  Pick.  57 ;  and  see  Raymond  v. 
Bearnard,  12  Johns.  274;  Fitch  v.  Sargeant,  1  Ohio,  352. 
Where  one  of  the  parties  to  a  contract  dies,  unless  his  death 
terminates  the  contract,  it  is  the  duty  of  his  legal  representative 
to  carry  the  contract  out,  and  in  case  of  his  neglect  or  refusal  to 
do  so,  the  other  party  may  treat  the  contract  as  rescinded  and 
sue  the  representative  in  general  indebitatus  assumpsit.  Miller 
V.  Thompson,  22  Ark.  258.  The  law  holds  parties  strictly  to 
the  terms  of  their  contracts.  If  a  party,  by  his  contract,  charges 
himself  with  an  obligation  possible  to  be  performed,  he  must 
make  it  good,  unless  its  performance  is  rendered  impossible  by 
the  act  of  God,  the  law  or  the  other  party.  Unforeseen  difficul- 
ties, however  great,  will  not  excuse  him.  Paradine  v.  Jayne, 
AUeyn,  27 ;  Beat  v.  Thompson,  3  Bos.  &  P.  420  ;  Beebe  v.  John- 
son, 19  Wend.  500.  If  unexpected  impediments  lie  in  the  way, 
and  a  loss  must  ensue,  the  law  leaves  the  loss  where  the  contract 
places  it.  If  the  parties  have  made  no  provision  for  a  dispensa- 
tion, the  rule  of  law  gives  none.  It  does  not  allow  a  contract 
fairly  made  to  be  annulled,  and  it  does  not  permit  to  be  inter- 
polated what  the  parties  themselves  have  not  stipulated.  Dermoti 
V.  Jones,  2  Wall.  1 ;  Cutter  v.  Powell,  2  Smith's  Lead.  Gas.  (7th 
Am.  Ed.)  m,  56. 

Among  the  numerous  cases  in  which  the  action  of  assumpsit, 
in  the  form  of  indebitatus  assumpsit,  has  been  maintained,  are 
the  following :    To  recover  money  advanced  upon  a  special  con- 


384  ASSUMPSIT. 

tract  wliicli  lias  been  rescinded.  Jenkins  v.  Thompson^  20  N.  H. 
457 ;  and  see  Kimball  v.  Cunningham,  4  Mass.  604 ;  Byers  v. 
BostwicTc,  2  Treadw.  (S.  C.)  75  ;  Dubois  v.  Delaware,  etc.,  Co.,  4 
Wend.  285 ;  to  recover  back  money  paid  by  a  purchaser,  on  a  parol 
contract,  for  real  estate,  where  the  vendor  or  his  heirs  are  una- 
ble or  fail  to  perform  their  part  of  the  contract.  Bariclcman  v. 
Kuylcendall,  6  Blackf.  (Ind.)  22  ;  to  recover  the  price  of  land 
sold  and  conveyed  to  the  defendant.  Siltzell  v.  Michael,  3  Watts 
&  Serg.  329 ;  see  ante,  380 ;  to  recover  for  extra  work  not  em- 
braced in  a  special  contract,  and  done  upon  the  subject  of  that 
contract.  Powel  v.  Buckley,  13  Mo.  317 ;  Bachelder  v.  Bick- 
ford,  64  Me.  526 ;  to  recover  money  agreed  to  be  paid  for 
owelty,  on  a  parol  partition  of  lands.  Walter  v.  Walter,  1 
Whart.  (Penn.)  292 ;  to  recover  the  wages  of  a  seaman,  who  had 
signed  shipping  articles,  was  taken  sick  while  in  the  defendant's 
service,  and  was  unable  to  rejoin  the  ship.  Sykes  v.  Summerel, 
2  Browne  (Penn.),  225 ;  after  a  settlement  of  accounts,  to  recover 
for  an  item  of  indebtedness  omitted  by  mistake  on  the  settlement. 
Sage  v.  Hawley,  16  Conn.  106  ;  or,  between  near  relatives,  to  re- 
cover for  board  and  maintenance,  on  proof  of  an  express  prom- 
ise, or  an  actual  understanding  in  respect  to  payment  therefor. 
Cannon  v.  Windsor,  1  Houst.  (Del.)  143 ;  see  Chapman  v.  Mich, 
63  Me.  588.  So,  general  assumpsit  is  held  to  lie  on  an  express, 
as  well  as  on  an  implied  promise.  Snyder  v.  Castor,  4  Yeates 
(Penn.),  353  ;  upon  a  judgment  of  a  justice  of  the  peace.  Green 
V.  Fry,  1  Cranch  (C.  C),  137 ;  but  not  in  New  York.  Andrews 
V.  Montgomery,  19  Johns.  162  ;  nor  in  North  Carolina.  Bain  v. 
Hunt,  3  Hawks  (N.  C),  572.  It  will  lie  against  a  sheriff  for 
money  received  on  execution  by  himself  or  his  deputy.  Owr- 
ion  V.  Hudson,  2  Wash.  (Va.)  172  ;  but  see  Armstrong  v.  Gar- 
row,  6  Cow.  465 ;  and  to  recover  back  over-payments  made  on 
the  note  of  a  third  person  in  its  absence,  upon  the  holder's  agree- 
ment to  refund  any  excess.  Stipp  v.  Johnston,  68  111.  176.  So, 
in  the  case  of  a  contract  for  the  sale,  at  $24,000,  of  a  livery  sta- 
ble, together  with  the  exclusive  privilege  of  furnishing  the  guests 
of  a  certain  hotel  with  carriage-hire,  the  vendor  falsely  repre- 
senting that  he  had  such  privilege,  and  that  it  alone  was  worth 
$5,000,  the  contract  was  held  to  be  severable,  and  that  indebita- 
tus assumpsit  would  lie  to  recover  back  the  last-mentioned  sura. 
Reybold  v.  Henry,  3  Houst.  (Del.)  279. 

Where  work  is  done  for  A,  at  the  request  of  B,  indebitatus 
assumpsit  may  be  maintained  against  B.    Clark  v.  Roop,  15 


ASSUMPSIT.  385 

Ark.  172.  So,  upon  an  agreement  that  a  seller  shall  receive 
specific  articles  in  payment  for  goods  sold,  and  the  defendant 
fails  to  deliver  the  articles  according  to  agreement,  this  form  of 
the  action  lies  against  him  for  goods  sold.  Baylies  v.  FetJoy- 
place,  7  Mass.  325,  329.  And  the  holder  of  a  note  payable  in 
labor  or  specific  goods,  in  a  suit  against  a  payee,  who  has  passed 
it  with  the  indorsement  "pay  the  bearer,"  may  declare  in  gen- 
eral assumpsit.  Elkinton  v.  Fennimore,  13  Penn.  St.  173. 
Likewise,  if  a  creditor  for  goods  sold,  etc.,  take  a  chose  in  action 
for  collateral  security,  and  payment  has  not  been  obtained  from 
it,  he  may  recover  in  indebitatus  assuiwpsit^  and  is  not  obliged 
to  resort  to  an  action  on  the  special  agreement  under  which  the 
security  was  received.   Leas  v.  James,  10  Serg.  &  K,.  (Penn.)  307. 

A  memorandum  promising  to  pay  money  "as  soon  as  a  crop 
could  be  sold  or  the  money  raised  from  any  other  source,"  was 
held  not  to  be  a  promissory  note  or  special  agreement  such  that 
the  plaintiff,  by  putting  it  in  evidence,  precluded  himself  from 
recovering  in  indebitatus  assumpsit  upon  an  account  stated. 
Nunez  v.  Dautel,  19  Wall.  560. 

§  3.  When  si)ecial  assumpsit  lies.  In  general,  except  as  stated 
in  the  preceding  section,  if  there  be  an  open  or  unperformed 
special  agreement,  special  assumpsit  must  be  brought  thereon. 
Maynard  v.  Tidball,  2  Wis.  34;  Western  v.  Sharp,  14  B. 
Monr.  (Ky.)  177 ;  Sherman  v.  New  York  Central  Railroad 
Co.,  22  Barb.  239 ;  Geer  v.  Brown,  11  Rich.  (S.  C.)  42.  See 
Weiss  V.  Mauch  Chunk,  etc.,  Railroad  Co.,  58  Penn.  St.  295; 
Norris  v.  Durham,  9  Cow.  151 ;  Butterfield  v.  Seligman,  17 
Mich.  95.  It  has  been  held  that  where,  under  an  express  con- 
tract, payment  is  to  be  made,  partly  or  wholly,  by  specific 
articles,  the  declaration  should  be  special  for  a  failure  to  deliver 
such  articles.  Bradley  v.  Levy,  5  Wis.  400  ;  Bernard  v.  Dickins, 
22  Ark.  351 ;  and  see  Weart  v.  Hoagland,  2  Zabr.  (N.  J.)  518  ; 
Mitchell  V.  Gile,  12  N.  H.'  390  ;  Fitch  v.  Casey,  2  Iowa,  301 ; 
Ho.rrison  v.  Luke,  14  M.  &  W.  138.  But  see  Clark  v.  Fairchildy 
22  Wend.  576.  So,  there  must  be  a  special  count  to  try  an  express 
or  an  implied  warranty.  Fowler  v.  Williams,  2  Brev.  (S.  C.) 
304 ;  Russell  v.  Oillmore,  54  111.  147 ;  Markley  v.  Withers,  4  T. 
B.  Monr.  (Ky.)  15.  And  a  special  count  is  necessary  where  the 
plaintiff  claims  damages  for  the  non-performance  of  an  executory 
agreement,  and  the  breach  sounds  in  damages  merely.  Vincent 
V.  Rogers,  30  Ala.  471 ;  and  see  Cutwater  v.  Dodge,  7  Cow.  85  ; 
and  a  promise  to  board  the  x^laintiff  for  a  certain  time  must  be 

Vol.  I. —49 


386  ASSUMPSIT. 

specially  declared  on.  Haynes  v.  Woods,  1  Stew.  (Ala.)  12.  So, 
it  is  held,  that  w]iere  there  is  an  express  agreement  for  j)articii- 
lar  services  for  a  certain  time,  and  the  plaintiff  is  discharged  by 
the  defendant  before  the  time  has  elapsed,  and  is  prevented  from 
performing  the  services,  he  must  declare  on  the  special  agreement. 
Algeo  V.  Algeo,  10  Serg.  &  R.  235  ;  Donaldson  v.  Fuller,  3  id. 
605  ;  but  see  Perkins  v.  Hart,  11  Wheat.  237  ;  Cutler  v.  Powell, 
2  Smith's  Lead.  Cas.  51,  52;  ante,  §  2.  If  there  has  been  an 
entire  executory  contract,  and  the  plaintiff  has  performed  a  part 
of  it,  and  then  willfully  refuses,  without  legal  excuse  and  against 
the  defendant's  consent,  to  perform  the  rest,  he  can  recover  noth- 
ing either  in  general  or  special  assumpsit.  Bermott  v.  Jones,  2 
Wall.  1,'  9  ;  StarJc  v.  Parker,  2  Pick.  267 ;  Angle  v.  Hanna,  22 
111.  431 ;  Malbon  v.  Birney,  11  Wis.  Ill ;  Cutter  v.  Powell,  2 
Smith's  Lead.  Cas.  (7th  Am.  Ed.)  53,  54  ;  and  see  Neoille  v. 
Frost,  2  E.  D.  Smith  (N.  Y.),  63;  Jones  v.  Jones,  4  Md.  607; 
Pullman  v.  Corning,  14  Barb.  174 ;  S.  C.  affirmed,  9  N.  Y.  (5 
Seld.)  174. 

AETICLE  IV. 

WHEN   THE   ACTION"   DOES    NOT   LIE. 

Section  1.  In  general.  An  assumpsit  will  not  generally  be 
implied  where  there  is  an  express  promise  ( Wortheji  v.  Stevens, 
4  Mass.  449 ;  WJiiting  v.  Sullivan,  7  id.  107.  See  ante,  74) ; 
nor  will  assumpsit  on  an  implied  promise  lie,  as  a  general  rule, 
against  the  express  declaration  of  the  defendant  (Id.  ;  Jewett  v. 
Somersett,  1  Me.  125) ;  unless  there  is  a  legal  obligation  para- 
mount to  the  will  of  the  party.  See  United  States  v.  Wolf,  Add. 
(Penn.)  312  ;  Proprietors  v.  Taylor,  6  N  H.  499  ;  a7ite,  art.  Ill, 
§  2.  It  will  not  lie  upon  a  contract  under  seal  {North  v.  Nicliols, 
37  Conn.  375  ;  Norris  v.  Maitland,  9  Phil.  [Penn.]  7) ;  unless 
the  contract  has  been  subsequently  varied  by  the  parties  {Aikln 
V.  Bloodgood,  12  Ala.  231  ;  Smith  v.  Smitli,  45  Yt.  433;  Pierce 
V.  Lacy,  23  Miss.  193  ;  Brown  v.  Oauss,  10  Mo.  265 ;  Little  v. 
Morgan,  31  N.  H.  499) ;  and  a  contract  for  a  fixed  salary  and  an 
implied  assumpsit  cannot  stand  together.  Chandler  v.  State,  5 
Harr.  &  J.  (Md.)  284.  Thus,  the  judicial  services  of  a  judge,  who 
has  a  fixed  salary,  is  not  a  foundation  from  which  an  assumpsit 
on  the  part  of  the  State  can  be  implied.  State  v.  Chase,  5  id. 
287 ;  ante,  74.  Assumpsit  for  money  paid  to  the  use  of  another 
will  not  lie  where  there  was  no  express  or  implied  promise  on 


ASSUMPSIT.  387 

his  part  "to  repay  it.  Briscoe  v.  Power,  64  111.  72 ;  Ingraliam  v. 
Gilbert,  20  Barb.  151 ;  Homestead  Company  v.  y alley  Uailroad, 
17  Wall.  153.  And  the  law  will  not  imply  a  promise  when  the 
circumstances  repel  all  implication  of  a  promise,  in  fact.  Thus, 
it  is  held  that  assumpsit  will  not  lie  for  the  value  of  personal 
property,  against  a  trespasser  who  still  retains  the  property  in 
his  possession.  Kelty  v.  Owens,  4  Chand.  (Wis.)  166  ;  Watson  v. 
Stever,  25  Mich.  386. 

In  further  illustration  of  this  subject  it  has  been  held  that 
assumpsit  cannot  be  maintained  on  a  specialty  {Dubois  v. 
Boubleday,  9  Wend.  317  ;  Hiiikley  v.  Foioler,  15  Me.  285  ;  Oaz- 
zum  V.  Ohio  Ins.  Co.,  Wright  [Ohio],  214) ;  on  an  award,  when 
the  submission  to  arbitration  is  under  seal  {Mc  Car  go  v.  Crutcher, 
23  Ala.  575  ;  TulUs  v.  Seioell,  3  Ohio,  510 ;  Holmes  v.  Smith,  49 
Me.  242) ;  for  labor  and  materials  furnished  under  a  sealed  con- 
tract with  a  corporation  {Porter  v.  Androscoggin,  etc.,  R.  P.  Co., 
37  Me.  349) ;  on  a  policy  of  insurance  under  seal  {Marine  Ins. 
Co.  V.  Young,  1  Cranch,  332  ;  Strobel  v.  Large,  4  McCord  [S. 
C.],  114) ;  to  enforce  the  liability  of  one  who  has  assigned  a 
specialty  by  indorsement  under  seal  {Sommerville  v.  Stephenson, 
3  Stew.  [Ala.]  271)  ;  nor  to  recover  back  the  price  of  property 
under  a  warranty  contained  in  a  sealed  instrument.  Anderson 
V.  Solomon,  2  Treadw.  Const.  (S.  C.)  329.  So  it  has  been  held 
not  to  lie  upon  a  judgment  rendered  in  a  sister  State  {India  Rub- 
ber Co.  V.  Hoit,  14  Vt.  92 ;  Andrews  v.  Montgomery,  19  Johns. 
162 ;  Garland  v.  TucTcer,  1  Bibb  [Ky.],  361 ;  McKini  v.  Odom, 
12  Me.  94  ;  but  see  Hubbell  v.  Coudrey,  5  Johns.  132  ;  Lambkin 
v.  Nance,  2  Brev.  [S.  C]  99)  ;  nor  on  a  judgment  of  a  court  in 
the  same  State(yai7v.  Mumford,  1  Root  [Conn.]  142);  nor  to 
try  the  title  to  land  {Baker  v.  Hoioell,  6  Serg.  &  R.  [Penn.]  481  ; 
Binney  v.  Chapman,  5  Pick.  140  ;  Miller  v.  Miller,  7  id.  133) ; 
nor  to  recover  for  the  loan  of  scrip  {Farrar  v.  Baber,  Ga.  Dec. 
Part  11,  125) ;  nor  to  recover  dues  payable  out  of  a  particular 
fund  {Insane  Hospital  v.  Higgins,  15  111.  185) ;  nor  on  a  parol 
demise  (  Wise  v.  Decker,  1  Cranch  [C.  C],  171) ;  nor  for  breach  of 
promise  of  marriage,  if  the  defendant  was  under  age  at  the  time 
of  the  promise.  Evans  v.  Terry,  1  Brev.  (S.  C.)  80.  It  cannot  be 
maintained  against  an  executor,  for  a  distributive  share  of  an 
estate,  without  an  express  promise  to  pay  (  Van  Car  v.  Haslett, 
Wright  [Ohio],  457) ;  nor  against  executors  on  a  promise  by 
them  to  perform  a  covenant  made  by  their  testator  {Landis  v. 
Urie,  10  Serg.  &  R.  316) ;  nor  against  a  public  officer  for  neglect 


388  ASSUMPSIT. 

or  misbehavior  in  office  {Bailey  v.  Butterfield,  14  Me.  112; 
McMillan  v.  Eastman,  4  Mass.  378) ;  nor  against  a  collector  of 
taxes  for  a  neglect  to  levy,  collect  and  pay  over  the  taxes. 
Charleston  v.  Stacy,  10  Vt.  562  ;  and  see  Oshorn  v.  Bell,  5  Denio, 
370.  Assumpsit  will  not  lie  for  use  and  occupation  where  rent 
is  reserved  by  deed,  although  there  be  an  express  parol  promise 
by  the  lessee  {Hawkes  v.  Young,  6  N.  H.  300 ;  Codman  v.  Jen- 
kins, 14  Mass.  95) ;  unless  such  promise  is  made  on  a  new  con- 
sideration, lb.  See  Bell  v.  Ellis,  1  Stew.  &  P.  (Ala.)  294.  And 
the  same  is  true  in  regard  to  a  promise  by  an  obligor  to  pay  his 
bond  to  the  obligee  at  a  future  day.  Andrews  v.  Montgomery^ 
19  Johns.  162.  A  grantor  verbally  bargained  certain  land  for  a 
specified  consideration,  and,  either  by  mistake  or  fraud,  the 
premises  conveyed  did  not  include  a  parcel  of  ten  acres  embraced 
in  the  bargain.  Without  rescinding  the  contract,  the  plaintiff 
brought  assumpsit  to  recover  the  value  of  the  lot  thus  omitted, 
or  a  proportional  part  of  the  consideration  paid ;  and  it  was 
held,  that  the  action  would  not  lie.     Rand  v.  Webber,  64  Me.  191. 

When  a  statute  confers  a  new  power,  and  provides  the  means 
of  executing  it,  those  who  claim  the  power  can  execute  it  in  no 
other  way.  Assumpsit  will  not,  therefore,  lie  for  assessments  on 
shares  in  the  stock  of  a  corporation  {Franklin  Glass  Co.  v.  WJdte, 
14  Mass.  286;  ante,  42,  43),  unless  there  be  an  express  promise  to 
pay  them.  Worcester  Tump.  v.  Willard,  5  Mass.  80  ;  Butcliess 
Cotton  Manuf.  Co.  v.  Davis,  14  Johns.  238. 

In  assumpsit  by  a  building  committee  against  one  of  the 
signers  of  a  subscription  paper,  whereby  he  agreed  to  pay  a  cer- 
tain sum  toward  the  building,  it  appeared  that  after  the  sub- 
scription the  building  committee  had  been  chosen  at  a  meeting 
of  some  of  the  subscribers,  but  it  did  not  appear  that  the  defend- 
ant was  present  or  was  notified  of  the  meeting,  and  none  of  the 
committee  were  among  the  subscribers  ;  and  it  was  held,  that 
there  was  no  privity  between  the  plaintiffs  and  the  defendant, 
and  that  the  action  could  not  be  maintained.  Curry  v.  Rogers, 
21  N.  H.  247 ;  and  see  Troy  Academy  v.  Nelson,  24  Vt.  189. 
See  ante,  104,  105. 

§  2.  When  indebitatus  assumpsit  does  not  lie.  Indebitatus 
assumpsit  will  not  lie  for  services  voluntarily  rendered.  There 
must  be  a  contract,  express  or  implied,  between  the  parties,  or 
it  cannot  be  maintained.  Force  v.  Haines,  17  N.  J.  (Law),  385  ; 
Watkins  v.  Trustees  of  Richmond  College,  41  Mo.  302.  Not- 
withstanding a  verbal  promise  to  pay  for  the  services,  made  after 


ASSUMPSIT.  389 

their  rendition.  Sanderson  v.  Brown,  57  Me.  308.  Nor  will  it 
lie  where  an  express  contract,  although  not  under  seal,  is  still 
open,  or  is  to  be  performed  in  future.  Christy  v.  Price,  7  Mo. 
430 ;  Dermott  v.  Jones,  23  How.  233 ;  Speake  v.  Sheppard,  6  Harr. 
&  J.  (Md.)  81 ;  Charles  v.  Dana,  14  Me.  383 ;  Felton  v.  Dickin- 
son, 10  Mass.  287;  Kelly  v.  Foster,  2  Binn.  (Penn.)  4;  ante,  74. 
The  action  in  such  case  must  be  on  the  contract.  Id.  And  see 
Harris  v.  Llgget,  1  Watts  &  S.  (Penn.)  301 ;  Camp  v.  Barker, 
21  Vt.  469  ;  Woolen  v.  Eeed,  10  Miss.  585.  So,  the  action  must 
be  special  upon  a  collateral  undertaking  to  pay  the  debt  of 
another.  Johnson  v.  Clark,  5  Blackf.  (Ind.)  564;  Elder  y.  War- 
field,  7  Harr.  &  J.  (Md.)  391.  And  if  A  employs  B  to  make  a 
particular  article  for  A,  out  of  materials  furnished  by  B,  and 
during  the  progress  of  the  work,  and  before  it  has  assumed  the 
character  contracted  for,  or  has  been  accepted  by  A,  or  appro- 
priated to  his  use,  the  work  is  stopped  by  him,  the  proper 
remedy  for  B  is  a  special  action  for  refusing  to  accept  the  article, 
or  for  preventing  its  completion.  Allen  v.  Jarms,  20  Conn.  38. 
Indebitatus  assumpsit  will  not  lie  to  recover  the  price  of 
grain  growing  in  the  ground  {Lewis  v.  Culbertson,  11  Serg.  &  R. 
48) ;  nor  for  the  price  of  a  tract  of  land  {Haskins  v.  Wright,  1 
H.  &  M.  [Va.]  378) ;  nor  to  recover  the  value  of  produce,  or 
damages  for  not  delivering  it,  where  the  entire  contract  is  to 
deliver  certain  quantities  of  produce  {Goursey  v.  Comngton,  5 
Harr.  &  J.  [Md.]  45) ;  nor  upon  a  promise  to  pay  damage  caused 
by  the  defendant,  where  the  amount  of  the  damage  is  not  ascer- 
tained at  the  time  of  the  promise  {Page  v.  Babbit,  21  N.  H.  389) ; 
nor  for  goods  sold  and  delivered,  where  there  lias  not  been  either 
an  actual  delivery,  or  what  in  point  of  law  amounts  to  a  delivery 
of  the  goods.  Messer  v.  Woodman,  22  id.  172.  So,  it  will  not  lie 
on  an  undertaking  to  get  land  surveyed  for  the  plaintiff  ( Young 
V.  Hays,  2  Yeates  [Penn.],  216) ;  nor  for  interest  on  a  judgment 
debt  during  the  suspension  of  the  execution  by  the  creditor 
(Beedle  v.  Grant,  1  Tyler  [Vt],  433) ;  nor  upon  an  express  con- 
tract, although  it  is  not  under  seal  and  has  been  performed,  if 
the  consideration  is  payable,  by  the  terms  of  the  contract,  not 
in  money  but  in  specific  property  {Cochran  v.  Tatum,  3  T.  B. 
Monr.  [Ky.]  405 ;  see  ante,  374,  art.  3,  §  3);  nor  where  the  agreement 
is  not  for  the  payment  of  money,  but  for  the  doing  of  some 
other  thing  {Spratt  v.  Jif  Kinney s,  1  Bibb  [Ky.],  595) ;  as  where 
the  defendant  agreed  to  pay  the  plaintiff  in  tobacco  for  his  ser- 


390  ASSUMPSIT. 

vices  as  overseer.     Brookes  v.  Scott^   2  Mimf.  (Va.)  344  ;   see 
Marshall  v.  IlcPherson,  8  Gill  &  J.  (Md.)  333. 

But  a  contract  will  be  implied  to  pay  what  a  service  is  reason- 
ably wortli,  where  such  service  is  rendered  even  without  a  party's 
knowledge ;  if  it  was  an  act  of  necessity,  for  which  he  was 
bound  to  provide,  or  where  it  can  be  assumed  that  he  necessarily 
would,  had  he  known  of  the  exigency,  required  it  to  have  been 
done,  understanding  that  he  was  to  pay  for  it.  Hewett  v.  Bron- 
son,  5  Daly  (N.  Y.),  1. 


ARTICLE  V. 

WHO   MAY   BEING  THE  ACTION. 

Section  1.  In  general.  The  action  of  assumpsit  may  be 
brought  by  the  party  from  whom  the  consideration  of  the 
promise  moved,  or  by  the  person  for  whose  benefit  it  was  paid. 
See  ante,  art.  1,  §  3  ;  StroJiecker  v.  Grant,  16  Serg.  &  R.  241 ; 
Todd  V.  Tobey,  29  Me.  219  ;  Felton  v.  BicMnson,  10  Mass.  287 ; 
Rogers  v.  Gosnell,  58  Mo.  589  ;  Same  v.  Same,  51  id.  466  ;  Steene 
V.  AyleswortJi,  18  Conn.  244  ;  Hitchcock  v.  Lukens,  8  Port.  (Ala.) 
333.  But  when  neither  the  consideration  moves  from  the  plain- 
tiff, nor  the  promise  is  made  to  him,  nor  for  his  benefit,  an 
action  cannot  be  maintained.  Shear  v.  Overseers  of  Hillsdale, 
13  Johns.  495  ;  and  see  Warden  V.  Burnham,  8  Vt.  390.  See 
ante,  103,  104. 

The  following  instances  may  serve  to  illustrate  the  application 
of  the  rule  above*  stated :  If  A  promises  B,  in  writing,  to  pay 
certain  debts  of  B,  the  creditors  to  whom  those  debts  are  due 
may  maintain  an  action  on  the  promise,  as  if  made  to  them- 
selves. Arnold  v.  Lyman,  17  Mass.  400.  So,  A  being  indebted 
to  B,  and  B  to  C,  it  was  agreed  between  them  that  A  should 
pay  C  the  amount  of  the  debt  due  B,  and  C  agreed,  with  the 
consent  of  A  and  B,  to  take  A  as  his  debtor ;  and  it  was 
held  that  C  might  sue  A  for  the  amount,  and  that  B's  debt 
to  C  was  extinguished.  Orover  v.  Sims,  5  Blackf.  (Ind.)  498; 
ante,  81.  A,  owing  B,  remitted  money  to  C,  to  be  paid  to  B. 
C  afterward  promised  B  to  pay  the  money  to  him.  B  may 
maintain  an  action  against  C  to  recover  the  money.  Wynian 
V.  Smitli,  2  Sandf.  (N.  Y.)  331.  But  where  A,  being  indebted 
to  B,  promises  B  to  pay  the  amount  to  C,  the  promise  not 
being  in  writing,  C  cannot  maintain   an  action   against  A  to 


ASSUMPSIT.  391 

recover  the  amount,  unless  there  is  a  new  and  distinct  considera- 
tion for  the  promise,  moving  to  A,  either  from  B  or  C.  Blunt 
V.  Boyd,  3  Barb.  209  ;  S.  C,  6  N.  Y.  Leg.  Obs.  361 ;  1  Code  K.  7. 
And  where  A  paid  money  to  B  for  the  use  of  C,  to  whom  he  was 
not  indebted,  by  mistake,  intending  to  have  paid  it  for  the  use 
of  D,  to  whom  he  owed  it ;  this  was  held  not  to  give  D  a  right 
of  action  for  the  money,  but  that  A  must  recover  it  back  as 
having  been  paid  by  mistake.  Wilson  v.  Greer,  7  Humph. 
(Tenn.)  513.     See  ante,  103,  104. 

A  bought  out  the  business  and  store  of  B,  and  agreed  to  pay 
certain  debts,  indorsed  on  the  bill  of  sale,  among  which  was  a 
debt  due  to  C ;  and  it  was  held,  that  C  could  maintain  assump- 
sit against  A  on  his  promise.  Beet  v.  McLauglilin,  12  Mo.  433; 
Corl  V.  Riggs,  12  id.  430.  And  where  B  obtained  goods  on  the 
letter  of  credit  of  A,  who  paid  for  them,  it  was  held,  that  A 
might  recover  the  amount  so  paid  of  B,  although  the  goods  were 
charged  to  B  and  C,  and  although  A  paid  without  suit.  Lind- 
say V.  Moore,  9  id.  176.  A  parol  promise  "  to  bestow  to  A,  for 
B's  services  as  preacher,  $25,  and  to  cease  at  this  date,"  will 
support  an  action  only  in  the  name  of  B.  Edmundson  v.  Penny, 
1  Penn.  St.  334. 

A  made  a  single  bond  for  $400  payable  to  B,  and  by  him 
passed  to  C  without  indorsement.  On  the  representation  of  A 
that  he  was  entitled  to  a  credit  thereon,  C  admitted  it,  took  a 
new  bond  to  himself  for  the  balance,  and  gave  up  the  old  bond. 
Afterward,  C  brought  suit  against  A  to  recover  the  sum  allowed 
as  a  credit,  on  the  ground  that  it  was  not  due,  and  had  been 
allowed  by  mistake.  It  was  held,  that  he  could  not  recover, 
because,  if  any  promise  of  C  was  to  be  implied  for  its  repayment, 
it  must  be  a  promise  to  the  legal  owner  of  the  first  bond.  Diclcey 
y.  JoTinson,  Busbee's  Law  (N.  C),  405. 

If  a  bank  takes  a  draft  as  so  much  money,  and  agrees  to  pay 
the  note  of  the  person  who  delivers  the  draft,  the  header  of  the 
note  thereafter  assenting  to  such  arrangement  may  recover  the 
amount  of  the  note  from  the  bank;  the  indebtedness  of  the 
maker  of  the  note  being  a  sufficient  consideration,  and  the  holder 
becoming  thereby  the  party  beneficially  interested  and  entitled 
to  sue.     Commercial  Bank  v.  Wood,  7  Watts  &  Serg.  89. 

And  where  land  is  conveyed,  subject  to  a  mortgage  for  which 
the  grantor  is  personally  liable,  and  the  deed  declares  that  the 
grantee  is  to  pay  the  mortgage  as  a  part  of  the  purchase-money, 
be  is  liable  to  the  grantor  for  the  amount  of  the  mortgage,  as  it 


892  ASSUMPSIT. 

becomes  due,  in  an  action  of  assumpsit.    Raioson  v.  Copeland, 
2  Sandf.  Ch.  251.     Burr  v.  Beers,  24  N.  Y.  (10  Smith)  178. 

The  action  lies  for  a  corporation.  Bean  and  Chapter  of 
Rochester  v.  Pierce,  1  Camp.  466 ;  and  against  it,  in  the  United 
States,  Chesapeake  and  Ohio  Canal  Company  v.  Knapp,  9  Pet. 
641;  Hay  den  7.  Middlesex  Tump.  Corp.,  10  Mass.  397;  Bunn 
V.  Rector,  etc.,  of  St.  Andrews,  14  Johns.  118;  Waring  v.  Ca- 
tawba Company,  2  Bay  (S.  C),  109.  But  it  does  not  lie  against 
a  corporation  in  England,  unless  by  express  authority  of  statute. 
1  Ohitt.  PL  98. 

Assumpsit  on  a  quantum  meruit,  for  work  done  by  two  part- 
ners, must  be  brought  in  the  name  of  both,  though  the  con- 
tract was  made  by  one  before  the  partnership.  Schnader  v. 
Schnader,  26  Penn.  St.  384. 

No  action  can  be  maintained  by  the  treasurer  of  an  associa- 
tion not  incorporated,  upon  a  written  promise  to  pay  money  as 
a  subscription,  the  same  being  payable  to  the  "treasurer"  of 
such  association  alone.  Ewing  v.  Medlock,  5  Port.  (Ala.)  82  ; 
Nash  V.  Russell,  5  Barb.  556.  So,  the  plaintiff  in  an  execution 
cannot  maintain  an  action  upon  the  promise  of  the  defendant 
made  to  the  constable  having  the  execution,  to  pay  him  the 
amount.  Cummings  v.  Klapp,  5  Watts  &  Serg.  511.  And 
a  bailee  of  property  cannot  be  charged,  in  an  action  of  assumpsit 
brought  in  the  name  of  a  purchaser,  upon  a  contract-  of  bail- 
ment made  with  the  former  owner.  Willard  v.  Bridge,  4  Barb. 
861.  So,  where  money  has  been  placed  in  the  hands  of  a  party, 
as  agent  or  bailee,  with  instructions  for  a  particular  purpose,  and 
the  bailee  has  acted  in  pursuance  of  these  instructions,  the 
administrator  of  the  person  placing  the  funds  cannot  maintain 
assumpsit  against  the  bailee  for  the  particular  fund.  Simpson 
V.  Barry,  2  M'MuU.  (S.  0.)  369. 

ARTICLE  VI. 

OF  THE  PLEADINGS   IN  THE  ACTION". 

Section  1.  The  declaration,  in  general.  The  declaration  in 
assumpsit  is  either  sjjecial  or  general,  the  latter  being  called  the 
indebitatus  count.  In  case  of  a  special  assumpsit,  the  contract 
should  be  stated  in  terms.  See  Woody  v.  Flournoy,  6  Munf. 
(Ya.)  606  ;  Royalton  v.  R.  <fe.  W.  Tump.  Co.,  14  Vt.  311 ;  Nor- 
thup  V.  Jackson,  13  Wend.  85.  But,  in  general,  assuiapsit  con- 
tains  only  a  general   recital   of  a  consideration,  promise,  and 


ASSUMPSIT.  393 

breacli ;  and  several  of  the  common  counts  are  frequently  used 
to  describe  the  same  cause  of  action.  See  1  Archb.  N.  P.  124 ; 
WheelwrigJit  v.  Moore,  1  Hall  (N.  Y.),  201 ;  Copes  v.  Matthews^ 
18  Miss.  398 ;  Bayer  v.  Reeside,  14  Penn.  St.  167 ;  Na-oe  v.  Berry, 
22  Ala.  382 ;  Bailey  v.  Freeman,  4  Johns.  280  ;  Norris  v.  Bur- 
ham,  9  Cow.  151. 

The  distinguishing  feature  between  the  common  counts  in 
assumpsit  and  in  debt  is,  that  in  the  former  action  the  word 
"promised"  is  used,  and  in  the  latter  the  word  "agreed." 
CruikshanJc  v.  Brown,  10  111.  75 ;  McGinnity  v.  Languerenne, 
id.  101. 

§  2.  Averments.  A  declaration  in  assumpsit  should  contain 
a  statement  of  facts  showing  a  sufficient  consideration  to  support 
the  alleged  promise.  People' s  Bank  v.  Adams,  43  Vt.  195.  If 
no  consideration  is  alleged,  no  cause  of  action  is  shown,  and  the 
declaration  will  be  bad  after  verdict,  and  on  error.  Benden  v. 
Manning,  2  N.  H.  289 ;  Mosely  v.  Jones,  5  Munf.  (Ya.)  23 ; 
Uemmenway  v.  Hickes,  4  Pick.  497 ;  Colborn  v.  Pomeroy,  44 
N.  H.  19.  And  the  whole  of  the  consideration,  if  it  be  an  entire 
one,  must  be  stated;  no  part  of  it  can  be  omitted.  Clark  v.  Gray, 
6  East,  568 ;  Neal  v.  Yiney,  1  Camp.  471 ;  Symonds  v.  Garr,  id. 
361. 

In  assumpsit  upon  an  executory  agreement,  where  the  plain- 
tiff's  promise  is  the  consideration  for  the  defendant's  undertak- 
ing, the  declaration  must  allege  the  plaintiff's  promise  explicitly 
and  expressly.  Therefore,  where  the  declaration  stated,  that  in 
consideration  that  the  plaintiff,  at  the  special  instance  and  re- 
quest of  the  defendant,  would  labor  for  the  defendant  for  one 
year,  the  defendant  promised,  etc.,  and  there  was  no  averment 
that  the  plaintiff  had  performed  such  labor,  either  wholly  or 
partially,  it  was  held  that  the  words  "would  labor"  did  not 
import  a  promise  to  labor  ;  and  that  the  declaration  was  insuffi- 
cient, even  after  verdict.    Russell  v.  Slade,  12  Conn.  455. 

In  an  assumpsit  on  a  collateral  undertaking,  the  declaration 
should  show  as  well  the  consideration  of  the  promise  as  the 
special  circumstances  under  which  it  was  made.  Johnson  v. 
Clark,  5  Blackf.  (Ind.)  564. 

But  a  declaration  relying  on  the  common  counts  in  assumpsit 
need  not  set  forth  what  was  the  consideration  for  an  alleged 
promise.  That  is  held  matter  of  evidence.  Thus,  a  landlord 
who  has  made  repairs  on  his  own  store  under  an  arrangement 
with  fee  tenant  that  the  landlord  should  make  such  repairs,  and 

Vol.  I.— 60 


394  ASSUMPSIT. 

that  the  tenant  might  surrender  his  lease,  and,  in  consideration 
of  his  being  allowed  to  do  so,  should  pay  the  landlord  for 
the  repairs,  may  recover  of  the  tenant  the  cost  of  the  repairs, 
under  the  common  counts  in  assumpsit,  without  setting  up  the 
special  circumstance  of  the  agreement.  Crane  v.  Grass7nan,  27 
Mich.  443.  See,  generally,  M Kee  v.  Bartley,  9  Penn.  St.  189 ; 
Carter  v.  Grams,  9  Yerg.  (Tenn.)  446  ;  Lyon  v.  Alcord,  18  Conn. 
66  ;  Hall  v.  SmitJi,  3  Munf.  (Ya.)  550. 

The  declaration  must  also  aver  the  promise  of  the  defendant ; 
otherwise  it  is  insufficient,  even  after  verdict.  McNuliy  v.  Col- 
lins, 7  Mo.  69  ;  Benden  v.  Manning,  2  N.  H.  289 ;  Hayter  v. 
Moat,  2  Mees.  &  W.  56 ;  Candler  v.  Rossiter,  10  Wend.  487. 
Nor  is  it  enough  to  allege  the  facts  upon  which  the  law  raises  an 
implied  promise ;  the  promise  itself  mi:ist  be  alleged,  or  the 
declaration  will  be  fatally  defective.  lb.  ;  Wings  v.  Brown,  12 
Rich.  (S.  C.)  270.  But  see  Bell  v.  Hohhs,  Ga.  Dec,  Part  11,  144; 
Avery  v.  Tyrlngham,  3  Mass.  160  ;  ClarTc  v.  Reed,  20  Miss.  554. 
Where  an  express  promise  is  the  same  as  the  law  implies,  either 
may  be  declared  on ;  but,  if  the  express  promise  differs  from 
what  the  law  implies,  it  must  be  set  out  in  the  pleading.  Prince- 
ton, etc..  Tump.  v.  GuUcJc,  16  N.  J.  (Law)  161.  Mutual  prom- 
ises must  be  alleged  to  have  been  made  at  the  same  time.  Liv- 
ingston V.  Rogers,  1  Caines,  583  ;  WliiteJiall  v.  Morse,  5  Serg.  & 
R.  368.  And  the  promise  and  the  breach  thereof  must  be 
alleged  to  have  been  made  before  the  commencement  of  the 
action.  If  alleged  to  have  been  made  after,  the  declaration  is  bad 
in  any  stage  of  the  cause.  Warring  v.  Yates,  10  Johns.  119  ; 
Gordon  v.  Kennedy,  2  Binn.  (Penn.)  287 ;  Rand  v.  Griffith,  11 
Serg.  &  R.  130  ;  Harper  v.  Montgomery,  5  Litt.  (Ky.)  347. 

In  assumpsit  upon  an  instrument,  itself  containing  a  promise 
or  undertaking  to  pay,  it  is  held  unnecessary  to  formally  set 
forth  another  promise,  resulting  from  legal  liability.  Woodson 
V.  Moody,  4  Humph.  (Tenn.)  303. 

In  all  cases  where,  by  the  terms  of  the  contract,  the  defendant 
is  not  bound  to  perform  his  promise,  until  after  the  plaintiff  or 
some  other  person  shall  have  done  some  other  act,  the  declara- 
tion must  state  the  contract  accordingly,  and  must  aver  that 
such  other  act  has  been  done.  An  averment  of  readiness  is  not 
sufficient.  1  Archb.  N.  P.  132;  Mclntire  v.  Clarli,  7  Wend.  330  ; 
Zerger  v.  Sailor,  6  Binn.  (Penn.)  24.  But  this  rule  does  not  hold 
where  the  defendant  has  disabled  himself  from  performing  his 
})art  of  the  contract.     Newcomh  v.  Bradlcett,  16  Mass.  161  ;   and 


ASSUMPSIT.  395 

see  Frost  v.  Clarlcson^  7  Cow.  24 ;  IliU  v.  Campbell,  6  Me.  111. 
And  where  one  promise  is  the  consideration  of  another,  it  is  not 
necessary,  in  declaring  for  a  breach  of  the  one,  to  allege  a  per- 
formance of  the  other.  Wliitehall  v.  Horse,  5  Serg.  &  R.  358 ; 
and  see  Close  v.  Miller,  10  Johns.  90  ;  Bey  v.  Box,  8  Wend.  129. 
So,  if  the  act  to  be  done  by  the  plaintiff  be  the  payment  of 
money,  and  the  act  of  the  defendant  be  the  delivery  of  goods, 
etc.,  the  plaintiff  need  not  aver  the  payment,  or  even  a  tender  of 
the  money  to  the  defendant ;  it  will  be  sufficient  to  aver  that  he 
was  ready  and  willing  to  pay  for  the  goods  on  delivery.  Bris- 
tow  v.  Waddington,  2  New  Rep.  355  ;  Rawsoii  v.  Johnson,  1 
East,  203  ;  Waterhouse  v.  Skinner,  2  Bos.  &  P.  447  ;  Robinson 
V.  Tyson,  46  Penn.  St.  286. 

The  omission  by  the  plaintiff  to  allege  an  excuse  for  the  non- 
performance of  his  'part  of  the  contract  is  cured  by  verdict. 
Helm  v.  Wilson,  4  Mo.  481. 

As  it  regards  averment  of  a  demand  or  notice  it  is  held,  that 
if  a  declaration  sets  out  a  legal  liability  and  alleges  a  subsequent 
promise  to  pay  on  request,  it  is  good,  although  there  is  no  alle- 
gation of  request  made.  Henderson  v.  Howard,  2  Ala.  342. 
But  see  McEwan  v.  Morey,  60  111.  32.  In  actions  on  an  insimul 
computassent,  the  bringing  of  the  action  is  a  sufficient  demand 
{Greenwood  v.  Curtis,  6  Mass.  366),  and  this  rule  applies  in  all 
other  cases  where  there  is  a  precedent  debt  or  duty.  Thomas  v. 
Roosa,  7  Johns.  462  ;  Ernst  v.  Bartle,  1  Johns.  Cas.  319  ;  Leffing- 
well  V.  White,  id.  99.  Where,  from  the  natare  of  the  agreement, 
a  special  demand  is  necessary,  but  not  averred  in  the  declara- 
tion, such  omission  will  be  aided  by  verdict.  Rodgers  v.  Love, 
2  Humph.  (Tenn.)  417.  And  where  a  previous  demand  is  neces- 
sary to  maintain  a  suit  against  two  joint  promisors,  to  aver  a 
demand  on  one  is  sufficient.  McFarland  v.  Grary,  8  Cow.  263 ; 
Griswold  v.  Plumb,  13  Mass.  298. 

A  breach  of  the  defendant's  promise  must  also  be  alleged,. or 
the  declaration  is  bad.  Bender  v.  Manning,  2  N.  H.  289.  But 
in  assumpsit,  several  breaches  of  the  same  contract  may  be 
assigned  in  one  count.  Smith  v.  Boston,  etc.,  R.  R.,  36  id.  458. 
The  breach  may  be  assigned  in  the  words  of  the  promise,  if  those 
words  show,  with  sufficient  certainty,  a  breach  within  the  intent 
and  meaning  of  the  promise,  but  not  otherwise.  If  the  promise 
be  in  the  alternative,  that  the  defendant  would  do  one  thing  or 
another,  the  breach  must  negative  both,  in  the  disjunctive,  that 
the  defendant  did  neither  the  one  thing  nor  the  other.     1  Archb. 


396  ASSUMPSIT. 

N.  P.  134.  A  breach  badly  assigned  is  bad  on  general  demurrer; 
but  is  aided  by  verdict  for  the  plaintiff.  Id.  And  see  Pasteur 
V.  Par  Jeer,  3  Eand.  (Va.)  458  ;  BanJc  v.  Beehe,  6  Ohio,  498. 

A  plaintiff  in  indebitatus  assumpsit,  claiming  under  a  verbal 
statement  of  accounts,  must  make  a  full  exhibit  of  the  accounts 
which  he  claims  to  have  been  adjusted,  that  the  defendant  may 
object  to  them  in  whole  or  in  part,  and  dispute  any  item  separ- 
ately. A  mere  allegation  that  the  accounts  were  stated  and 
adjusted,  leaving  the  defendant  in  arrear  to  the  amount  claimed, 
is  held  insufficient.    Neyland  v.  Neyland,  19  Tex.  423. 

Where  the  gist  of  the  action  is  a  recovery  by  a  third  person 
against  the  plaintiff,  it  is  not  necessary  for  him  to  set  forth  in 
what  manner  that  third  person  commenced  his  suit.  Allaire  v. 
Ouland,  2  Johns.  Cas.  52. 

Under  the  practice  in  Maryland,  the  omission  to  prefix  the 
averment,  "  for  money  payable  by  the  defendant  to  the  plaintiff," 
to  the  common  counts  in  a  declaration  in  indehitatus  assumpsit, 
is  fatal  on  demurrer.     Merryman  v.  Ryder,  34  Md.  98. 

§  3.  What  may  be  pleaded  in  defense.  An  assumpsit  is  an 
action  founded  on  a  contract,  the  non-performance  of  which  is  a 
fraud  and  injury  to  the  plaintiff;  and,  therefore,  the  defendant 
must  show  that  there  was  no  contract,  or  that  the  contract  was 
void  and  without  consideration,  or  that  he  has  performed  it,  and 
is,  therefore^  discharged.  Bac.  Abr.,  Assump.  H.  The  defenses 
of  infancy,  coverture,  a  release,  the  statute  of  limitations,  etc., 
will  be  fully  discussed  under  those  respective  heads,  in  that 
portion  of  this  work  specially  treating  of  defenses,  and  a  refer- 
ence to  them  generally  is  here  made. 

If  two  modes  of  relief  are  open  to  a  plaintiff,  and  he  elects  to 
bring  assumpsit,  the  defendant  may  urge  any  defense  peculiar 
to  that  action,  although  the  same  defense  could  not  have  been 
insisted  on  if  the  other  action  had  been  pursued.  Meredith  v. 
Richardson,  10  Ala.  828. 

§  4.  The  general  issue.  In  an  action  of  assumpsit,  the  plea 
of  the  general  issue,  or  non-assumpsit,  puts  the  plaintiff  upon 
proving  his  whole  case,  and  entitles  the  defendant,  without  prior 
special  notice,  to  give  evidence  of  any  thing  which  shows  that 
the  plaintiff,  ex  cequo  et  bono,  ouglit  not  to  recover.  Falconer  v. 
Smith,  18  Penn.  St.  130  ;  Heck  v.  Shener,  4  Serg.  &  R.  249.  Thus, 
the  defendant,  under  the  general  issue,  may  in  all  cases  dispute 
and  disprove  the  consideration  stated  on  the  face  of  the  declara- 
tion {Beech  v.  Wiite,  12  Ad.  &  El.  668 ;   S.  C,  4  P.  &  D.  399 ; 


ASSUMPSIT.  397 

Brydges  v.  Lewis,  3  Q.  B.  603  ;  Sutherland  v.  Pratt,  11  M.  &  W. 
296),  except  in  the  case  of  mutual  promises.  He  may  also  dis- 
pute and  disprove  the  promise.  Id.  In  cases  within  the  statute 
of  .frauds,  he  may  prove  that  the  contract  was  not  in  writing, 
and  that  the  statute  in  other  respects  was  not  complied  with. 
See  Eastwood  v.  Kenyon,  11  Ad.  &  El.  438 ;  Buttermere  v.  Hayes, 
o  Mees.  &  W.  456  ;  Leaf  v.  Turton,  10  id.  393.  In  an  action  for 
work  and  labor,  he  may  prove  that  the  plaintiff  agreed  to  do 
the  work  without  reward  {Jones  v.  Nanney,  1  id.  383) ;  or  with- 
out reward,  unless  it  answered  a  particular  purpose,  and  that  it 
did  not  answer  that  purpose.  Hayselden  v.  Staff,  5  Ad.  &  EL 
153  ;  Grounsell  v.  Lamb,  1  Mees.  &  W.  352.  So,  in  indebitatus 
assumpsit,  for  work  done  or  goods  sold,  the  defendant  may 
prove  that  the  work  was  improperly  done,  or  the  goods  not  such 
as  were  contracted  for.  Cousins  v.  Paddon,  2  Cr.  M.  &  R.  556  ; 
Slsson  V.  Willard,  25  Wend.  373  ;  Gaio  v.  Wolcott,  10  Penn.  St. 
43.  And  in  general,  every  thing  which  is  incumbent  on  the 
plaintiff  to  prove,  the  defendant  may  disprove  under  general 
issue.     1  Archb.  N.  P.  145. 

Several  defendants,  sued  upon  a  joint  assumpsit,  cannot  sever- 
ally plead  the  general  issue  {Meagher  v.  Bachelder,  6  Mass.  444) ; 
nor  can  they  severally  plead  the  same  plea  in  bar.  Ward  v. 
Johnson,  13  id.  152. 

Where  a  party  is  sued  in  assumpsit  as  the  indorser  of  a  note, 
and  he  pleads  the  general  issue,  he  thereby  admits  the  character 
of  indorser,  in  which  he  is  sued.  Tilman  v.  Ailles,  13  Miss.  (5 
Smed.  &  M.)  373. 

§  5.  Special  pleas.  In  assumpsit,  certain  matters  of  defense 
may  be  pleaded  specially  or  given  under  the  general  issue  ;  but 
a  special  plea  in  bar  must  always  give  color  to  the  plaintiff's 
right.  Dibble  v.  Duncan,  2  McLean,  553.  Special  pleas  admit 
the  contract  as  stated  in  the  declaration,  and  show,  either  a  per- 
formance by  the  defendant,  or  facts  which  in  law  excuse  or 
justify  the  non-performance  of  it.  Archb.  PI.  &  Ev.  202.  It 
follows,  that  a  special  plea  which  amounts  to  the  general  issue, 
must  be  bad  on  special  demurrer  (id.  177,  180) ;  for,  so  far  from 
confessing  the  contract,  it  denies  it.  Arch.  N.  P.  147.  See 
Armstrong  v.  Webster,  30  111.  333  ;  Goodrich  v.  Reynolds,  31  id. 
490.  Therefore,  where  to  an  action  for  work,  labor  and  mate- 
rials, the  defendant  pleaded  that  by  agreement  the  amount  was 
to  be  taken  in  malt  and  beer,  and  that  he  was  always  ready  and 
willing  to  deliver  such  malt  and  beer  to  the  plaintiff;  this  was 


398  ASSUMPSIT. 

held  bad,  as  amounting  to  the  general  issue,  for  it  denied  the 
contract  stated  in  the  declaration.  ColUnghourne  v.  Maniell^  5 
Mees.  &  AV.  289 ;  and  see  Dlcken  v.  Neale,  1  id.  556  ;  Cleworth 
V.  Pickford,  7  id.  314 ;  llorgan  v.  Febrer,  3  Bing.  (N.  C.)  457 ; 
Lyall  V.  Higgins,  4  Q.  B.  528.  So,  where  the  plea  qualifies  the 
contract  stated  in  the  declaration,  and  introduces  a  new  stipula- 
tion into  it,  it  is  bad  as  amounting  to  the  general  issue,  although 
in  truth  it  only  set  out  what  was  the  actual  agreement  between 
the  parties.  Nash  v.  Breeze,  11  Mees.  &  W.  352 ;  and  see  Wil- 
liams V.  Vines,  1  Dowl.  &  L.  710 ;  S.  C,  13  Law  J.,  N.  S. 
(Q.  B.),  326. 

ARTICLE  VII. 

OF  THE   EVIDEKCE   IN   THE   ACTIOK. 

Section  1.  Under  the  common  counts.  In  assumpsit,  the  con- 
sideration of  the  promise  must  not  only  be  proved,  but  it 
must  be  proved  as  laid  in  the  declaration.  Knox  v.  Martin,  8 
N.  H.  154 ;  Swallow  v.  Beaumont,  2  B.  &  A.  765 ;  Clarke  v. 
Gray,  6  East,  564.  Where  the  plaintiff  counts  generally,  and 
also  specially,  and  fails  to  prove  the  special  contract,  he  may 
recover  on  the  common  counts ;  but  if  he  prove  a  different 
special  contract,  he  can  recover  neither  on  the  special  nor  the 
general  counts.  Draper  v.  Randolph,  4  Harr.  (Del.)  454  ;  Mor- 
ris V.  Burton,  id.  53. 

In  assumpsit  to  recover  the  debt  of  a  third  person,  the  proof  of 
the  defendant's  promise  to  pay  the  same  must  be  clear,  explicit 
and  certain.    Petriken  v.  Baldy,  7  Watts  &  Serg.  429. 

Where  a  writing  is  offered  in  evidence,  under  the  common 
counts,  its  execution  must  be  proved.  Hunley  v.  Lang,  5  Port. 
(Ala.)  154.  Among  the  writings  held  admissible  under  the  com- 
mon counts  are  the  following  :  A  sealed  contract  {Carter  v. 
Collar,  1  Phil.  [Penn.]  339  ;  Oouverneur  v.  Elliot,  2  Hall  [N.  Y.] 
211);  a  promissory  note  {Cus/iing  v.  Gore,  15  Mass.  74 ;  Hins- 
dale V.  Bank  of  Orange,  6  Wend.  378 ;  Woods  v.  ScJiroeder,  4 
Harr.  &  J.  [Md.]  276  ;  Boyle  v.  Carter,  24  111.  49  ;  McFerran  v. 
Chambers,  64  id.  118) ;  a  note  payable  in  specific  property  {Taplin 
v.  Packard,  8  Barb.  220 ;  8t.  Louis,  etc.,  Ins.  Co.  v.  Soulard,  8 
Mo.  665) ;  a  bank  check  {Carter  v.  Hope,  10  Barb.  180 ;  Howes 
V.  Austin,  35  111.  396) ;  a  coupon  {Johnson  v.  Stark,  24  id.  75) ; 
an  award  {Brady  v.  Mayor,  1  Barb.  684) ;  a  bill  of  exchange 
{Wells  V.  Brigham,  6  Cush.  6;  Farmers',  etc..  Bank  v.  Payne, 
25  Conn.  444 ;  Purdy  v.  Vermilya,  8  N.  Y.  [4  Seld.]  346) ;  the 


ASSUMPSIT.  399 

acknowledgment  of  a  debt  {Carver  v.  Hayes,  47  Me.  257;  Morse 
V.  Allen,  44  N.  H.  33  ;  Rutledge  v.  Moore,  9  Mo.  537) ;  certificates 
of  deposit  {Swift  v.  Marsh,  20  111.  144 ;  State  Bank  v.  Corwitli, 
6  Wis.  551) ;  and  an  account  stated  {Stowe  v.  Sewall,  3  Stew.  & 
P.  [Ala.]  67;  see,  also,  Gregory  \.  Bailey,  4  Harr.  [Del.]  256. 
So,  a  writing  as  follows  :  "For  value  received  of  Cummings  & 
Manning,  or  order,  thirty  dollars  and  eighty- three  cents  on 
demand,  and  interest  annually,"  and  signed  by  the  defendant, 
was  held  competent  and  sufficient  evidence  under  a  count  for 
money  had  and  received.  Cummings  v.  Gassett,  19  Vt.  308. 
But  it  was  held  that  a  memorandum,  made  by  a  payee  of  a  note 
for  $2,500,  on  the  back  thereof  in  these  words,  "  Mr.  O.,  pay  on 
within  $750,"  did  not  support  a  recovery  on  the  money  counts, 
by  the  holder  against  the  payee.  Douglass  v.  WilJceson,  6  Wend. 
637.  See  Shoop  v.  Claris,  1  Keyes  (N.  Y.),  181 ;  S.  C,  4  Abb.  Ct. 
App.  235. 

A  count  for  money  paid  to  B  by  A,  at  the  request  of  and  for 
the  use  of  C,  is  supported  by  proof  of  the  sale  of  a  bond  by  A 
to  B,  and  that  B  credited  C  with  the  amount.  Jones  v.  Coolce, 
3  Dev.  L.  (N.  C.)  112. 

§  2.  Under  special  counts.  Where  the  declaration  is  upon  a 
special  contract,  the  contract  must  be  proved  as  set  forth,  or  the 
plaintiff  cannot  recover.  And,  if  the  evidence  in  relation  to  the 
contract  and  the  supposed  breach  thereof  is  altogetlier  variant 
from  that  which  is  set  out  in  the  declaration,  a  verdict  for  the 
plaintiff  must  be  set  aside  and  a  new  trial  granted.  Kidder  v. 
Flagg,  28  Me.  477.  On  a  special  count  upon  an  executory  con- 
tract, the  plaintiff  is  not  entitled  to  recover  by  proof  of  an  exe- 
cuted contract.  Simpson  v.  Warren,  5  Harr.  (Del.)  371.  But,  in 
a  special  count,  it  is  no  objection  to  the  admission  of  evidence, 
that  it  does  not  prove  a  cause  of  action,  if  it  prove  the  promise 
declared  on.     WheelocJc  v.  Wheeloclc,  5  Vt.  433. 

Where  the  action  was  for  the  breach  of  a  contract  to  devise 
land  to  the  plaintiff,  in  compensation  for  services,  it  was  held, 
that  the  want  of  evidence  of  the  value  of  the  services  did  not 
preclude  a  recovery  on  a  quantum  meruit,  the  plaintiff  being 
entitled  to  at  least  nominal  damages.  Bash  v.  Bash,  9  Penn. 
St.  260.  See,  generally,  Clark  v.  Gilbert,  26  N.  Y.  (12  Smith) 
279  ;  Holley  v.  Borland,  16  La.  Ann.  186 ;  Gammaye  v.  Alex- 
ander, 14  Tex.  414;  Cutter  v.  Powell,  2  Smith's  Lead.  Gas.  (7th 
Am.  ed.)  262. 


400  ASSUMPSIT. 

§  3.  Under  the  general  issue.  Evidence  under  the  general 
issue  has  been  noticed  briefly  in  a  preceding  article.  See  anie^  396, 
art.  6,  §  4.  In  further  illustratif)n  of  the  doctrine  there  stated,  it 
may  be  added  that  the  defendant  in  assumpsit  may,  under  the 
general  issue  or  non-assumpsit,  give  in  evidence  any  matter 
which  shosvs  that  the  plaintiff  never  had  a  cause  of  action. 
Craig  v.  Missouri,^:  Pet.  426;  Wilt  v.  Ogden,  13  Johns.  56  ;  or, 
most  matters  of  discharge,  which  show  that,  at  the  commence- 
ment of  the  suit,  there  was  no  subsisting  cause  of  action.  Cook 
V.  Vimont,  6  T.  B.  Monr.  (Ky.)  284 ;  Edson  v.  Weston,  7  Cow. 
278  ;  Smart  v.  Baugli,  3  J.  J.  Marsh.  (Ky.)  163.  Thus,  infancy 
( Wailing  v.  Toll,  9  Johns.  141 ;  Stanshury  v.  Marks,  4  Dall. 
130) ;  usury  {Cotton  v.  Lake,  2  Mass.  540);  want  of  consideration 
or  illegal  consideration  {Hilton  v.  Burley,  2  N.  H.  193  ;  Craig 
V.  Missowi,  4  Pet.  436) ;  deceit  in  a  sale  {Sill  v.  Rood,  15  Johns. 
230)  ;  the  mental  incapacity  of  the  defendant,  when  the  promise 
was  made  {MitcTiell  v.  Kingman,  5  Pick.  431)  ;  that  the  promise 
declared  on  was  for  money  won  at  gaming,  contrary  to  statute 
{Jones  V.  Pryor,  1  Bibb  [Ky.],  614) ;  payment  {Drake  y.  Drake, 
11  Johns.  531  ;  M^  Donald  v.  Faulkner,  2  Ark.  472) ;  a  release 
{Dawson  v.  Tibhs,  4  Yeates  [Penn.],  439) ;  an  offer  to  perform 
the  promise,  and  prevention  by  the  plaintiff  ( Wilt  v.  Ogden,  13 
Johns.  56) ;  a  former  judgment,  etc.,  between  the  same  parties, 
on  the  same  cause  of  action  {Kilheffer  v.  Herr,  17  Serg.  &  R. 
325  ;  Young  v.  Black,  7  Cranch,  565  ;  Arnold  v.  Paxton,  6  J.  J. 
Marsh.  [Ky.]  503) ;  or  whatever  shows  the  contract  void,  or 
defeats  the  promise  {Talhert  v.  Cason,  1  Brev.  [S.  C]  298)  ;  are 
all  matters  that  may  be  given  in  evidence  under  the  general 
issue.  So,  a  former  recovery  {Carvill  v.  Oarrigues,  5  Penn.  St. 
152 ;  Young  v.  Rummell,  2  Hill  [N.  Y.],  478) ;  an  accord  and 
satisfaction  {Stewart  v.  Sayhrook,  Wright  [Ohio],  374;  Chappell 
V.  Phillips,  id.  372)  ;  or  a  partial  as  well  as  an  entire  paj^ment, 
may  be  so  given  in  evidence.  Dingee  v.  Letson,  15  N.  J.  (Law) 
259  ;  Britton  v.  Bishop,  11  Vt.  70.  And  payment  after  action 
brought  may  be  shown  under  the  general  issue,  in  reduction  of 
damages.  Hendrickson  v.  Hutchinson,  29  N.  J.  (Law)  180 ; 
Pemigewasset  Bank  v.  Brackett,  4  N.  H.  557 ;  M^Millian  v. 
Wallace,  3  Stew.  (Ala.)  185 ;  see  Boyd  v.  Weeks,  2  Denio,  321. 
But  an  award  made  pendente  lite  cannot  be  shown  unless  it  is 
pleaded.    Harrison  v.  Brock,  1  Munf.  (Va.)  22. 

In  assumpsit  upon  a  note  given  for  the  price  of  goods,  a  breach 
of  warranty  may  be  given  in  defense,  under  the  general  issue. 


ASSUMPSIT.  401 

RoMnson  v.  Windham,  9  Port.  (Ala.)  397.  And  tlie  defendant 
may  prove  under  the  general  issue,  that  the  action  was  com- 
menced before  the  debt  was  due.    Rainey  v.  Long,  9  Ala.  754. 

In  an  action  of  assumpsit  for  work  done  and  materials  fur- 
nished in  the  erection  of  a  house,  upon  a  contract  in  which  the 
prices  are  only  stipulated  in  part,  and  in  which  the  plaintiff 
bound  himself  expressly  to  complete  the  building  faithfull}^, 
and  deliver  it  at  an  appointed  time  ;  or,  on  failure  so  to  do,  to 
deduct  from  the  contract  price  of  the  house  the  rent  that  would 
have  been  received  for  it  during  the  period  of  delay,  the  defend- 
ant is  entitled  to  prove  that  the  work  was  defective,  and  that  it 
was  not  completed  within  the  time  limited,  and  to  claim  an  offset 
for  damage  arising  from  such  defective  work  and  lost  rent. 
Davis  V.  Baxter,  2  Patt.  &  H.  (Va.)  133. 

§  4.  Under  plea  of  payment.  Under  this  plea,  it  is  held,  that 
the  defendant  cannot  give  evidence  tending  to  disprove  the  cause 
of  action  set  forth  in  the  plaintiff's  statement.  Hamilton  v. 
Moore,  4  Watts  &  S.  570.  But  evidence  of  payment  in  other 
things  than  money  may  be  given.  Id.  And  after  a  plea  of  pay- 
ment, the  defendant  cannot  object  that  the  instrument  produced 
in  evidence  varies  from  that  declared  on;  for  the  plea  admits  the 
identity  of  the  instrument.    Hubbard  v.  Blow,  4  Call.  (Va.)  224. 

§  5.  Incompetent  evidence.  As  it  regards  matters  of  evidence 
held  incompetent  or  insufficient  to  support  the  declaration  under 
the  common  counts  in  assumpsit,  the  following  illustrations  are 
given :  Matters  in  aggravation  of  damages,  which  occur  after 
suit  brought.  Oreenleaf  v.  McColley,  14  N.  H.  303  ;  a  written 
promise  of  indemnity.  Winton  v.  Meeker,  25  Conn.  456  ;  Smith 
V.  McOehee,  14  Ala.  404 ;  evidence  of  claims  by  one  partner 
against  another  upon  partnership  accounts.  Wright  v.  Cobleigh, 
21  N.  H.  339  ;  a  non-negotiable  note,  no  consideration  appear- 
ing on  its  face.  Saxton  v.  Johnson,  10  Johns.  418  ;  a  draft  on  a 
particular  fund,  not  purporting  to  be  for  any  consideration,  and 
not  a  bill,  note,  order,  draft,  or  check,  within  the  law  merchant, 
Raiganel  v.  Ayliff,  16  Ark.  694 ;  a  special  contract  remaining 
unperformed.  Maynard  v.  Tidball,  2  Wis.  34 ;  an  accepted 
order  for  the  delivery  of  specified  goods.  Burrall  v.  Jaoot,  1 
Barb.  165;  drafts  drawn  on  A  by  B,  to  prove  an  indebtedness  by 
B.  HealyY.  Oilman,  1  Bosw.  (N.  Y.)  235;  a  letter  from  the 
vendee  of  goods  to  the  vendor,  averring  that  the  goods  were 
bought  under  a  guarantee  that  the  vendor  would  reimburse  the 
vendee  any  loss  that  might  be  sustained,  together  with  an  in- 

VoL.  I.  — 51 


402  ASSUMPSIT. 

closed  account  showing  the  extent  of  the  loss,  which  letter  was 
not  answered.  Frdley  v.  BispTian,  10  Penn.  St.  320  ;  and,  in  an 
action  on  a  note,  evidence  of  damages  arising  from  breach  of  the 
contract  on  which  the  note  was  given.  Cheongwo  v.  Jones,  3 
Wash.  359. 

A  declaration  for  the  sale  and  delivery  of  pine  timber  is  not 
supported  by  proof  of  a  sale  and  delivery  of  spruce  timber 
{RohMns  V.  Otis,  1  Pick.  368) ;  nor  an  allegation  that  certain 
machines  were  warranted  to  be  good  and  merchantable,  by  proof 
that  they  were  warranted  to  be  equal  to  any  in  America  {Gould- 
ing  V.  Skinner,  1  id.  162) ;  nor  a  count  on  a  note  dated  July 
26th,  by  a  note  dated  July  25th  {Stephens  v.  OraJiam,  1  Serg. 
&  R.  405 ;  and  see  Church  v.  Feterow,  2  Penn.  301) ;  nor  a 
promise  to  pay  $9.25  a  month  for  twelve  months'  work,  by  a 
promise  to  pay  $92.50  for  ten  months'  work  {Cranmer  v.  Graham, 
1  Blackf.  [Ind.]  406) ;  nor  an  agreement  between  A  and  B,  by  an 
agreement  between  C  and  B  {Anderson  v.  Hays,  2  Yeates  fPenn.], 
95) ;  nor  a  promise  to  deliver  cloth  to  the  plaintiff,  by  evidence 
of  an  agreement  to  deliver  cloth  at  the  defendant's  factory 
{ClarJc  V.  Todd,  1  D.  Chip.  [Vt.]  213) ;  and  a  promise  to  pay 
money  is  not  proved  by  evidence  of  a  promise  to  deliver  certifi- 
cates of  debenture.  Baylies  v.  Fettyplace,  7  Mass.  325.  And 
see  Hart  v.  Tyler,  15  Pick.  177 ;  Barton  v.  Kane,  17  Wis.  37 ; 
Child  V.  Eureka,  etc.,  Works,  44  N.  H.  354. 

Where  a  declaration  in  assumpsit  is  made  against  a  common 
carrier,  without  regard  to  the  bills  of  lading,  they  are  not 
applicable  to  the  counts  of  the  declaration,  and  should  not  be 
admitted  as  evidence  in  support  thereof.  Baltimore,  etc.,  H.  M. 
V.  Rathhone,  1  W.  Va.  87. 

A  will  directing  payment  of  a  debt  alleged  to  be  due  the  tes- 
tator by  his  sons,  within  a  certain  time,  is  not,  in  itself,  such 
evidence  of  indebtedness  as  will  support  an  action  of  assumpsit 
against  them  by  the  executors.  Zimmerman  v.  Zimmerman, 
47  Penn.  St.  43.  And  in  an  action  of  indehitatus  assumpsit 
by  a  broker,  to  recover  compensation  for  selling  certain  property 
which  was  fixed  by  a  special  contract,  evidence  to  prove  the 
usual  rates  charged  by  brokers  for  services  of  a  like  character, 
is  incompetent.    Edwards  v.  Goldsmith,  16  id.  43. 

If  tlie  money  counts  allege  the  promise  to  have  been  made  to 
pay  on  demand  with  interest,  the  action  will  fail  unless  an 
express  promise  to  pay  interest  is  proved.  Tappan  v.  Austin, 
1  Mass.  31.     And  if  A  deliver  property  to  B,  on  an  agreement 


ASSUMPSIT.  403 

which  is  afterward  rescinded,  the  law  implies  a  promise  by  B  to 
return  the  property ;  and  such  evidence  will  not  support  a  count 
alleging  B's  promise  to  refund  in  money.  It  is  necessary  to 
prove  an  express  promise  by  B,  in  order  to  sustain  such  count. 
Talbot  V.  Dailey,  3  Bibb  (Ky.),  443. 

Where  the  time  of  doing  a  thing  is  material,  it  must  be  proved 
as  laid.  But  it  is  otherwise  where  the  time  is  immaterial.  Jor- 
dan V.  Cooper^  4  Serg.  &  R.  676.  And  see  Droion  v.  SmitJi,  3 
N.  H.  301 ;  Hough  v.  Toung,  1  Ohio,  504  ;  Perry  v.  Botsford^  5 
Pick.  189 ;  Arnold  v.  Arnold,  3  Bing.  (IST.  C.)  81  ;  Stout  v.  Hassell, 

2  Yeates  (Penn.),  334. 

§  6.  Variance.  It  is  a  general  rule  that  the  plaintiff  in  assump- 
sit cannot  recover  on  the  special  counts  in  his  declaration,  when 
the  contract  proved  is  substantially  variant  from  that  set  out. 
Hopper  V.  Eiland,  21  Ala.  714.  But  a  variance  between  the 
proof  and  the  allegations  of  the  Special  counts  will  not  bar  a 
recovery  upon  the  common  counts.     Staat  v.  Er)ans,  35  111.  455. 

Where  money  paid  is  the  alleged  consideration  of  a  promise, 
proof  of  payment  after  the  promise  does  not  sustain  the  allega- 
tion. Benden  v.  Manning,  2  'N.  H.  289.  And  where  the  con- 
sideration alleged  was,  that  the  plaintiff  would  indorse  a  note, 
evidence  of  a  promise,  in  consideration  of  the  plaintiff' s  having 
indorsed  it,  was  held  to  be  a  fatal  variance.    Bulkley  v.  Landon, 

3  Conn.  404.  The  same  was  held  where  the  declaration  alleged 
an  undertaking  in  consideration  of  the  plaintiff's  promise  to 
build  a  ship,  and  the  evidence  was  of  a  promise  by  the  plaintiff 
to  finish  a  ship  partly  built  {Smith  v.  Barker,  3  Day,  312  ;  and 
see  Harris  v.  Harris,  2  Rand.  [Ya.]  431) ;  and  so,  where  the 
promise  alleged  was  to  render  a  reasonable  account  of  goods 
consigned  for  sale,  and  the  evidence  was  of  a  promise  to  account 
in  a  special  manner.  Pope  v.  Barret,  1  Mas.  (C.  C.)  123.  And 
see  Blake  v.  Croioninshield,  9  N.  H.  304 ;  Leland  v.  Douglass, 
1  Wend.  490;  Carley  v.  Dean,  4  Conn.  259 ;  Starnes  v.  Erwin, 
10  Ired.  L.  (N.  C.)  226.  A  contract  must  be  proved  as  laid,  and 
the  plaintiff  cannot  give  in  evidence  an  entire  contract,  relating 
to  two  subjects,  when  he  declares  for  one.  Where,  therefore, 
the  declaration  alleged  a  promise  to  pay  for  half  the  land  for  a 
highway,  and  the  evidence  showed  a  promise  to  pay  for  all  the 
land,  it  was  held  that  the  variance  was  fatal.  Crawford  v.  Mor- 
rell,  8  Johns.  253. 

Where  the  declaration  set  out  a  contract  to  carry  and  deliver 
an  account,  and  the  evidence  was  of  a  contract  to  carry  and 


404  ASSUMPSIT. 

deliver  a  letter  containing  an  account,  the  variance  was  held  to 
be  immaterial.  Favor  v.  PMlbriok,  7  N.  H.  326.  So,  in  plead- 
ing an  order  to  deliver  goods  to  B,  it  was  alleged  that  the  goods 
were  to  be  delivered  to  B  or  order  ;  and  this  was  held  not  to  be  a 
variance,  as  the  words  "or  order"  were  not  material.  Bailey 
V.  Johnson,  9  Cow.  115.  See,  also.  Clap  v.  Bay,  2  Me.  305  ;  Mf'p- 
sJier  V.  Shane,  3  Yeates  (Penn.),  575  ;  Wroe  v.  Washington,  1 
"Wash.  (Va.)  357 ;  Colgln  v.  Henley,  6  Leigh  (Ya.),  85  ;  Cunning- 
ham V.  Kimball,  7  Mass.  65.  And  the  omission  to  set  forth  in  a 
count  the  manner  of  payment  prescribed  in  an  agreement,  can- 
not be  treated  as  a  variance  if  no  question  is  made  in  the  cause 
upon  that  part  of  the  agreement.  Guyon  v.  Lewis,  7  Wend,  26. 
In  assumpsit  on  a  special  agreement,  it  is  not  a  ground  of  non- 
suit that  the  evidence  proves  a  smaller  sum  to  have  been  agreed 
upon  between  the  parties,  than  is  stated  in  the  declaration  ;  for 
the  plaintiff  may  recover  less  damages  than  those  laid  in  the 
declaration.    Covington  v.  Lide,  1  Bay.  (S.  C.)  158. 

ARTICLE  VIII. 

OF  THE   DAMAGES  IN"  THE  ACTION'. 

Section  1.  In  general.  The  actual  damages  resulting  to  the 
plaintiff  from  the  breach  of  the  contract  by  the  defendant,  is  the 
amount  of  damage  which  the  defendant  is  liable  to  pay,  and 
which  the  plaintiff  is  justly  entitled  to  recover  in  an  action  of 
assumpsit,  for  such  delinquency.  Doolittle  v.  McCullough,  12 
Ohio  St.  360 ;  Farrard  v.  Bouchel,  Harper  (S.  C),  83 ;  Miller 
V.  Hilliard,  Cheves  (S.  C),  149;  Doughty  v.  O Donnell,  4  Daly 
(N.  Y.),  60.  This  is  the  general  rule  ;  but  where,  from  the  nature 
of  the  contract,  no  possible  mode  is  left  for  ascertaining  the 
damage,  the  court  will  adopt  the  only  measure  of  damage  which 
remains,  and  that  is  the  price  agreed  to  be  paid.  Doolittle  v. 
McCullough,  12  Ohio  St.  360  ;  Coffee  v.  Meigs,  9  Cal.  363,;  Bald- 
win V.  Bennett,  4  id.  392.  See,  generally,  on  this  point,  Berkill 
V.  Keighly,  15  Mees.  &  W.  117 ;  Clark  v.  Mayor,  etc.,  of  Neio 
York,  4  N.  Y.  (4  Comst.)  338;  reversing  S.  C,  3  Barb.  288; 
Moran  v.  McSwegan,  1  Jones  &  Sp.  (N.  Y.)  350 ;  Hayioood  v. 
Leonard,  7  Pick.  181 ;  McLelland  v.  Snider,  18  111.  58  ;  Abbott 
V.  Oatch,  13  Md.  314 ;  Morris  v.  Parham,  4  Phil.  (Penn.)  62 ; 
Royalton  v.  Turnpike  Co.,  14  Vt.  311 ;  Webb  v.  Coonce,  11  Mo.  9. 

Where  a  vendee  of  goods  rightfully  offered  to  return  them, 
but  the  vendor  refused  acceptance,  and  then  th^  vendee  kept 


ASSUMPSIT.  406 

and  sold  tliem,  the  rule  of  damages,  in  assumpsit  by  the  original 
vendor,  wa^  held  to  be  the  amount  of  the  proceeds  of  such  sale, 
after  deducting  a  fair  compensation  for  the  services  of  the 
vendee,  and  not  the  whole  value  of  the  goods.  Greene  v.  Bate- 
man^  2  Woodb.  &  M.  359.  And  in  an  action  of  assumpsit  to 
recover  damages  for  the  breach  of  an  agreement  to  pay  money 
by  annual  installments,  it  was  held  that  the  verdict  could  be 
only  for  the  installments  due  at  the  commencement  of  the  action. 
CoggesTiall  v.  CoggesTiall,  2  Strobh.  (S.  C)  51. 

ARTICLE   IX. 

,    ELECTION"  BETWEEJS"  ASSUMPSIT  AND  OTHEE  ACTIONS. 

Section  1.    Plaintiff   may  waive  tort  and  bring  assumpsit. 

With  respect  to  personal  property,  it  is  a  long-established  rule 
that  the  owner,  from  whom  they  have  been  tortiously  taken, 
may  in  many  cases  waive  the  tort,  as  it  is  expressed,  and  state 
his  demand  as  arising  on  contract.  See  Lightly  v.  Clousto7i,  1 
Taunt.  114 ;  Howard  v.  Wood^  2  Lev.  245 ;  Hambley  v.  Trott, 
Cowp.  371 ;  Cummings  v.  Noyes^  10  Mass.  433,  436 ;  Sangster 
V.  Commonwealth,  17  Gratt.  (Va.)  124 ;  Willet  v.  Willet,  3  Watts 
(Penn.),  277 ;  McCullough  v.  McCullough,  14  Penn.  St.  295 ; 
Chambers  v.  Lewis,  2  Hilt.  (N.  T.)  591 ;  Isaacs  v.  Hermann,  49 
Miss.  449.  The  principle  upon  which  this  right  to  waive  the 
tort  and  sue  in  assumpsit  rests,  is  that,  as  a  party  cannot  set  up 
or  take  advantage  of  his  own  wrong,  he  cannot  be  permitted  to 
say  he  is  not  liable  for  the  value  of  the  goods,  or  for  the  money 
received  on  the  sale  of  them,  for  the  reason  that  his  act  of 
appropriation  was  a  tort.  Abbott  v.  Blossom,  66  Barb.  353,  356. 
And  one  reason  given  in  favor  of  the  action  of  assumpsit  is  that 
it  will  lie  as  well  against  the  executor  or  administrator  of  the 
wrong-doer,  as  against  the  party  himself  in  his  life-time.  Ham- 
bley V.  Trott,  Cowp.  371 ;  Crai^ath  v.  Plympton,  13  Mass.  454.  So, 
it  is  more  favorable  to  the  defendant  that  he  should  be  sued  in 
contract,  because  that  form  of  action  lets  in  a  set-off,  and  enables 
him  to  pay  money  into  court.  Young  v.  Marshall,  8  Bing.  43  ; 
Lightly  v.  Clouston,  1  Taunt.  114;  Butts  v.  Collins,  13  Wend. 
156.  And  in  the  absence  of  fraud  it  relieves  him  from  liability 
to  arrest,  under  the  law  of  some  of  the  States.  See  Abbott  v. 
Blossom,  66  Barb.  (N.  Y.)  353,  356  ;  Both  v.  Palmer,  27  id. 
652,  654. 


406  ASSUMPSIT. 

There  is  considerable  difficulty  connected  with  the  matter  of' 
determining  under  what  circumstances  the  right  of  electing  be- 
tween tort  and  assumpsit  arises.  It  may,  however,  be  received 
as  a  well-settled  rule,  that  when  the  trespasser  has  sold  or  dis- 
posed of  the  property,  and  received  money  or  money's  worth  for 
it,  the  owner  may  waive  the  tort,  and  affirm  the  sale,  as  made  on 
his  behalf,  and  recover  the  proceeds  in  an  action  of  assumpsit. 
PiJce  V.  Bright,  29  Ala.  332  ;  Watson  v.  Stever,  25  Mich.  386 ; 
Barlow  v.  Stalworth,  27  Ga.  517 ;  Morrison  v.  Rogers,  3  111.  317; 
Staat  V.  Evans,  35  id.  455 ;  Jones  v.  Hoar,  5  Pick.  285,  and 
note ;  Elliott  v.  Jackson,  3  Wis.  649  ;  see  2  Greenl.  on  Ev.  89, 
and  note.  But  some  doubt  has  been  thrown  over  the  question 
whether,  in  the  case  of  a  wrongful  conversion  of  the  property, 
the  owner  can  waive  the  tort  and  sue  the  wrong-doer  in  assump- 
sit as  for  goods  sold  and  delivered,  where  the  wrong-doer  has 
not  sold  but  retains  the  goods.  Some  of  the  cases  hold  that  he 
cannot.  See  Willet  v.  Willet,  3  Watts  (Pa.),  277;  Watson  v. 
Stemr,  25  Mich.  386 ;  Smith  v.  k^mith,  43  N.  H.  536;  Fidler  v. 
Duren,  36  Ala.  73  ;  Winchell  v.  Noyes,  23  Vt.  303  ;  McKnight 
V.  Dunlap,  4  Barb.  36  ;  Harpending  v.  Shoemaker,  37  Barb.  270, 
291 ;  Tryon  v.  Baker,  7  Lans.  (N.  Y.)  511,  514.  But  the  better 
opinion  is  said  to  be,  that  he  may  do  so,  at  all  events,  where  the 
wrong-doer  has  absolutely  used  the  property  for  his  own  benefit, 
changing  its  condition  and  character.  See  Abbott  v.  Blossom, 
66  Barb.  353  ;  McGoldrick  v.  Willits,  52  N.  Y.  (7  Sick.)  612,  620; 
Hill  V.  Davis,  3  N.  H.  384  ;  Jo7ies  v.  Gregg,  17  Ind.  84 ;  Chaun- 
cey  V.  Teaton,  1  id.  451  ;  Stockett  v.  Watkins,  2  Gill.  &  J.  (Md.) 
326,  342 ;  Butts  v.  Collins,  13  Wend.  154 ;  Alsbrook  v.  Hath- 
away, 3  Sneed  (Tenn.),  454.  So  it  has  been  decided  in  numerous 
cases  that,  upon  a  fraudulent  purchase  of  goods,  the  vendor 
may  repudiate  the  contract  as  fraudulent  and  yet  maintain  an 
action  for  goods  sold  and  delivered,  on  the  ground  of  his  right 
to  waive  the  tortious  taking,  and  bring  assumpsit  for  the  value. 
See  Hoth  v.  Palmer,  27  Barb.  655  ;  Weigand  v.  Sichel,  4  Abb. 
Ct.  App.  (N.  Y.)  592 ;  S.  C,  3  Keyes,  120  ;  33  How.  174  ;  Gray 
V.  Griffith,  10  Watts  (Pa.),  431 ;  Gary  v.  Hotailing,  1  Hill,  311, 
315  ;  Benedict  v.  Nat.  Bank  of  Commonwealth,  4  Daly  (N.  Y.), 
171 ;  Blalack  v.  Philliys,  38  Ga.  216 ;  Ascutney  Bank  v.  Mc- 
Ormsby,  28  Vt.  721.  And  it  has  been  held  that,  where  money 
or  goods  have  been  feloniously  taken,  the  action  of  money  had 
and  received  will  lie  against  the  wrong-doer,  before  criminal  pro- 
ceedings have  been  instituted  against  him.    Boston  &  Worcester 


ASSUMPSIT.  407 

E.  R.  Co.  V.  Dana,  1  Gray,  83 ;  and  see  Benedict  v.  Nat.  Bank 
of  Commonwealth,  4  Daly  (N.  Y.),  171.  But  see,  contra,  Bel- 
Jcnap  V.  Milliken,  23  Me.  381.  And  an  infant  is  held  liable  in  as- 
sumpsit for  money  had  and  received  for  money  tortiously  taken 
by  him.  Elwell  v.  Martin,  32  Yt.  217.  But  if  the  plaintiff  waives 
the  tort,  he  must  waive  the  whole  of  it ;  and  if  his  property  is 
wrongfully  sold  by  one  assuming  to  act  as  his  agent,  a  suit  in 
assumpsit  against  the  purchasers  ratifies  the  authority  of  the 
agent.    Brigham  v.  Palmer,  3  Allen,  450. 

As  illustrations  of  the  doctrine  above  stated,  it  has  been  held 
that,  where  growing  wood  wrongfully  cut  and  carried  away 
cannot  be  found  to  be  returned  in  specie,  the  owner  may  waive 
the  tort  and  sue  for  its  value,  as  on  an  implied  contract  of  sale. 
Halleck  v.  Mixer,  16  Cal.  674.  But  see  Allen  v.  Woodward,  22 
N.  H.  544.  So,  in  an  action  for  pasturing  cattle  on  the  plaintiff's 
land,  if  the  defendant  has  been  a  trespasser,  the  plaintiff  may 
waive  the  tort  and  sue  in  assumpsit.  Welch  v.  Bagg,  12  Mich. 
42.  So,  where  a  person  receives  property  as  a  pledge  and  re- 
fuses to  restore  it  to  the  pledgor  upon  request  and  performance 
of  the  obligation  to  secure  which  the  pledge  was  made,  an  action 
will  lie  either  in  tort  or  contract.  International  Bank  v.  Mon- 
teath,  39  N.  Y.  (12  Tiff.)  297.  And  where  goods  deposited  are 
wrongfully  sold  by  the  bailee,  the  owner  may  sue  him  in  trover, 
or  waive  the  tort  and  sue  in  assumpsit.  Berleyv.  Taylor, h  Hill 
(N.  Y.),  677.  And  so,  where  money  is  deposited  and  is  converted 
by  the  bailee.  Tryon  v.  Baker,  7  Lans.  (N.  Y.)  511.  So,  where 
an  intruder  or  trespasser  upon  a  wharf  collects  wharfage  of 
steamboats,  the  owner  of  the  wharf  may  waive  the  trespass,  and 
recover  the  amount  received  in  assumpsit  for  money  had  and 
received.  CConley  v.  Natchez,  9  Miss.  31.  And  in  an  action 
upon  a  contract  of  warranty,  the  party  injured  may  elect  to 
declare  in  tort  or  in  contract.    Humiston  v.  Smith,  22  Conn.  19. 

And  where  a  person  has  been  ^unlawfully  imprisoned,  he  may 
waive  the  tort  and  maintain  assumpsit  against  the  keeper  who 
has  derived  benefit  from  his  labor.  Patterson  v.  Crawford,  12 
Ind.  241 ;  Patterson  v.  Prior,  18  id.  440. 

If  property,  own«d  by  several  tenants  in  common,  has  been 
converted,  they  may  all  waive  the  tort  and  join  in  assumpsit,  or 
each  one  may  bring  a  separate  action  for  his  interest,  without 
joining  the  others.     Tanlkerslig  v.  Childers,  23  Ala.  781. 

It  has  been  held  that  assumpsit,  waiving  the  tort,  cannot  be 
maintained  against  a  trespasser  who  has  cut  and  carried  away 


408  ASSUMPSIT. 

grass,  if  he  nas  neither  sold  it  nor  had  any  benefit  from  it  but 
ill  its  use.  BalcTi  v.  Patten,  45  Me.  41.  So,  where  the  goods  of 
the  plaintiff  were  wrongfully  taken  by  the  defendant,  and  were 
destroyed  by  fire  while  in  his  possession,  it  was  held  that  the 
plaintiff  could  not  waive  the  tort  and  sue  in  form  ex  contractu. 
Scliweizer  v.  Weiber,  6  Rich.  (S.  C)  159.  It  is  likewise  held  that 
assumpsit  cannot  be  maintained  by  the  owner  of  a  horse  against 
a  party  who  has  exchanged  it,  while  *  in  his  possession,  for 
another,  and  has  not  sold  the  one  received  by  him  in  return. 
Fuller  V.  Duren,  36  Ala.  73.  So,  if  a  corporation  under  legis- 
lative authority  improves  a  stream  to  make  it  suitable  for  raft- 
ing logs,  and  the  stream  and  improvements  are  made  use  of  by 
another  company  without  permission,  the  former  cannot  waive 
the  tort  and  siie  upon  an  implied  promise  to  pay  for  such  use. 
Carson  Rizier,  etc.,  Go.  v.  Bassett,  2  Nev.  249.  And  the  doctrine 
which  allows  the  owner  of  a  personal  chattel,  wrongfully  con- 
verted by  a  sale,  to  waive  the  tort  and  bring  assumpsit  for 
money  had  and  received,  can  only  apply  where  the  owner  has  a 
right  to  the  money  at  the  time  when  the  tort  is  committed.  Jones 
V.  Baird,  7  Jones'  L.  (N.  C.)  152.  And  see  Bigelow  v,  Jones,  10 
Pick.  (Mass.)  165;  Turner  v.  Steam  Coal  Co.,  2  Eng.  Law  &  Eq. 
342.  And  where  goods  are  sold  on  credit,  it  has  been  held  that 
the  vendor  cannot  bring  assumpsit  for  goods  sold  before  the 
credit  has  expired,  even  though  he  can  prove  that  the  vendee 
induced  him  to  sell  him  the  goods  by  fraudulent  representations. 
Ferguson  v.  Carrington,  9  Barn.  &  C.  59 ;  Strutt  v.  Smith,  1 
Cromp.  Mees.  &  R.  312 ;  Galloway  v.  Holmes,  1  Dougl.  (Mich.) 
330  ;  and  see  Allen  v.  Ford,  19  Pick.  218.  But  see  Wigand  v. 
Sichel,  33  How.  (N.  Y.)  174;  S.  C,  3  Keyes,  120;  4  Abb.  Ct. 
App.  592,  where  it  is  held  that  fraud  invalidates  the  clause  as  to 
credit,  and  enables  the  vendor  to  sue  at  once  for  his  money. 

In  many  cases  where  an  action  for  a  tort  or  assumpsit  might 
have  been  brought  by  or  against  the  wrong-doer,  assumpsit  is 
the  only  remedy  for  or  against  his  representative.  Ford  v.  Cald- 
well, 3  Hill  (S.  C),  248;  Knights  v.  Quarles,  2  Brod.  &  B.  102  ; 
Foster  v.  Stewart,  3  M.  &  S.  202.  Thus,  if  a  man  take  a  horse 
from  another  and  bring  him  back  again,  an  action  of  trespass 
will  not  lie  against  his  executor  though  it  would  against  him. 
Hamhly  v.  T^'ott,  Cowp.  375.  But  an  action  for  the  use  and 
hire  of  the  horse  will  lie  against  the  executor.  Id.  And  gene- 
rally, if  it  be  a  sort  of  injury  by  which  the  offender  acquires  no 
gain  to  himself  at  the  expense  of  the  sufferer,  as  beating  or  im- 


ASSUMPSIT.  409 

prisoning  a  man,  etc. ,  there  the  person  injured  has  only  a  rej)ara- 
tion  for  the  delictum  in  damages  to  be  assessed  by  a  jury.  But 
where,  besides  the  crime,  property  is  acquired  which  benefits 
the  testator,  there  an  action  for  the  value  of  the  property  shall 
survive  against  the  executor.  As,  for  instance,  the  executor 
shall  not  be  chargeable  for  the  injury  done  by  his  testator  in 
cutting  down  another  man's  trees,  but  for  the  benefit  arising  to 
the  testator  for  the  value  or  sale  of  the  trees  he  shall.  lb.  And  see 
CravatTi  v.  Plymptoii,  13  Mass.  454 ;  Wllbour  v.  Gilmore,  21  Pick. 
252  ;  Poioell  v.  Reese,  7  Ad.  &  El.  426 ;  Sinnard  v.  McBride,  3 
Ham.  (Ohio)  264  ;  Ryan  v.  Marsh,  2  Nott  &  Mc.  (S.  C.)  156. 

Assumpsit  cannot  be  sustained  against  a  public  officer,  for 
taking  and  selling  the  personal  property  of  the  plaintiff,  in  good 
faith  under  color  of  lawful  authority.  Accordingly,  where  the 
defendant,  a  collector  of  taxes,  seized  and  sold  the  property  of 
the  plaintiff  for  a  tax  against  another  person,  for  which  the 
property  was  supposed  to  be  liable,  but  it  did  not  appear  whether 
the  defendant  had  actually  received  the  money  on  the  sale,  and 
the  plaintiff  brought  assumpsit  for  goods  sold  and  money  had 
and  received,  it  was  held  that  he  could  not  recover.  Oshorn  v. 
Bell,  5  Denio,  370.     And  see  CusJiman  v.  Jewell,  7  Hun,  525. 

§  2.  Election  in  other  cases.  A  person  who  is  compelled  to 
pay  money  in  consequence  of  a  breach  of  covenant  by  another, 
may  recover  it  back  from  such  person,  either  in  an  action  of 
assumpsit  or  covenant,  at  his  election.  Douglass  v.  Waer, 
Anth.  (N.  Y.)  179.  See  Weaver  v.  Bentley,  1  Gaines  (N.  Y.), 
47.  And  assumpsit  as  well  as  case  will  lie  against  a  bailee  for 
negligence.  Ferrier  v.  Wood,  9  Ark.  85.  So,  it  will  lie  in  many 
cases  where  del>t  will  lie.  Moses  v.  McFerlan,  Burr.  1008.  Thus, 
it  has  been  held  to  lie  concurrently  with  debt  on  contracts,  ex- 
press or  implied,  for  remuneration  for  personal  services  and  for 
all  the  usual  money  demands.  Mahaffey  v.  Petty,  1  Ga.  261. 
And  either  assumpsit  or  debt  lies  on  a  judgment  recovered  in  a 
sister  State.  Lambkin  v.  Nance,  2  Brev.  (S.  C.)  99 ;  ante,  OqO. 
So,  an  action  of  assumpsit,  as  well  as  an  action  of  account,  may  be 
maintained  against  an  agent,  when  he  promises  to  render  an 
account.  Kellogg  v.  Ch'iswold,  12  Yt.  291.  And  it  is  held  that 
a  recovered  lunatic  can  maintain  assumpsit  against  his  late 
guardian  for  the  balance  in  his  hands,  notwithstanding  he  might 
have  a  remedy  on  the  guardian's  bond.  Slieplierd  v.  Newkirk, 
21  N.  J.  (Law)  302. 

Vol.  L— 62 


410  ATTACHMENT. 

CHAPTER  XVII. 

ATTACHMENT. 

TITLE  I. 

OF  THE  EEMEDY  BY,  IN  GENERAL. 

ARTICLE  I. 

NATURE   OF   REMEDY. 

Section  1.  Origin  of.  The  remedy  by  attachment,  or,  in  other 
words,  the  preliminary  attachment  of  a  debtor's  property,  for 
the  eventual  satisfaction  of  the  demand  of  a  creditor,  is  said  to 
be  a  proceeding  of  very  early  origin.  As  it  regards  the  modern 
remedy  by  attachment,  its  origin  may  be  readily  traced  to  the 
custom  of  Foreign  Attachment  of  London,  a  custom  recognized 
as  existing  in  the  reign  of  William  the  Conqueror,  and  ascribed 
to  a  much  more  remote  antiquity.  See  Locke  on  Attach.  2  and 
note  ;  2  Wait's  Pr.  129;  Thayer  v.  Willett,  9  Abb.  (N.  Y.)  325, 
341 ;  S.  C,  5  Bosw.  344  ;  Bohun,  Privilegia  Londini.  The  object 
of  the  proceeding  by  custom  of  foreign  attachment  of  London, 
is  to  enable  the  creditor  to  attach  the  money,  debts  or  goods  of 
his  debtor  in  the  hands  of  a  third  person,  and  so  to  deprive  the 
owner  of  all  control  over  the  subject  of  the  attachment  until  he 
appears  to  answer  the  claim  of  his  creditor,  or  until  the  debt  is 
satisfied.  Locke  on  For.  Attach.  1,  2.  The  process  is  now 
known  in  England,  and  in  most  of  the  United  States,  as  garnisli- 
ment,  or  the  garnishee  process ;  but  in  the  New  England  States 
it  is  called  the  trustee  process,  and  in  Vermont  and  Connecticut 
is  also  sometimes  called  factorizing,  or  the  factorizing  process. 
As  it  affects  the  garnishee,  it  is  in  reality  a  suit  by  the  defendant 
in  the  plaintiff's  name.  Moore  v.  Stainton,  22  Ala.  (N.  S.)  831 ; 
Trams  v.  Tartt,  8  id.  674  ;  see  Malley  v.  Altman,  14  Wis.  22  ; 
Tliorn  V.  Woodruff,  5  Ark.  55.  See  IPGrath  v.  Hardy,  4 
Bing.  (N.  C.)  785,  which  contains  a  clear  statement  of  the  pro- 
ceedings according  to  the  custom  of  foreign  attachment  of 
London. 


ATTACHMENT.  411 

§  2.  Remedy  in  the  United  States.  The  essential  principle  of 
the  custom  of  foreign  attachment  of  London  has,  in  some  form, 
become  incorporated  into  the  legal  systems  of  all  our  States, 
and  has  given  rise  to  a  large  body  of  written  and  unwritten  law. 
As  it  exists  generally  in  the  United  States,  the  process  of  attach- 
ment may  be  described  as  a  special  statutory  remedy,  the  juris- 
diction being  exclusively  in  a  court  of  law  ;  and  in  a  case  where, 
from  a  conflict  of  jurisdiction,  or  from  other  causes,  the  remedy 
by  attachment  is  not  full  and  complete,  a  court  of  equity  has 
no  power  to  pass  or  grant  any  order  to  aid  or  perfect  it.  McPher- 
son  V.  Snowden,  19  Md.  197.  And  see  Buckley  v.  Lowry,  2 
Mich.  418 ;  Williams  v.  Gage,  49  Miss.  777 ;  Curtis  v.  Steever, 
36  N.  J.  L.  304.  So,  it  has  been  described  as  only  an  ancillary 
or  provisional  remedy,  in  and  dependent  on  an  independent 
suit.  FecTiheimer  v.  Hays,  11  Ind.  478  ;  Marsh  v.  Williams,  63 
N.  C.  371 ;  Frarikeiiheimer  v.  8locum,  24  Ala.  373 ;  Furman  v. 
Walter,  13  How.  (N.  Y.)  348;  Duncan  v.  WicTdiffe,  4  Mete. 
(Ky.)  118 ;  Maxwell  v.  Lea,  6  Heisk.  (Tenn.)  247 ;  Excelsior 
Fork  Company  v.  Lukens,  38  Ind.  438  ;  Toms  v.  Warson,  66  N. 
C.  417.  It  is  in  the  nature  of  a  proceeding  in  rem.  Megee  v. 
Beirne,  39  Penn.  St.  50 ;  Mankin  v.  Chandler,  2  Brock,  125 ; 
American  Bank  v.  Rollins,  99  Mass.  313 ;  Stone  v.  Miller,  62 
Barb.  (N.  Y.)  430.  And  it  is  held  that  a  statute  authorizing  pro- 
ceedings by  attachment  must  be  strictly  construed.  Caldwell  v. 
Haley,  3  Tex.  317 ;  May  v.  Baker,  16  111.  89  ;  Groce  v.  Eitten- 
herry,  14  Ga.  232 ;  Frellson  v.  Stewart,  14  La.  Ann.  832 ; 
McPherson  v.  Snowden,  19  Md.  197 ;  Parker  v.  Scott,  64  N.  C. 
118 ;  Campbell  v.  Hall,  McCahon  (Kans.),  53.  See,  however, 
Barney  v.  Patterson,  6  Harr.  &  J.  (Md.)  182,  in  which  it  is  held 
that  the  proceeding  by  attachment  is  not  in  derogation  of  the 
principles  of  the  common  law,  but  rather  in  mitigatipn  of  its 
severity.     See,  also,  Perkins  v.  Nor  veil,  6  Humph.  (Tenn.)  151. 

In  some  of  the  States  a  distinction  is  made  between  foreign 
and  domestic  attachments,  the  former  being  issued  against  a 
non-resident  of  the  State  and  the  latter  against  a  resident.  Where 
such  a  distinction  is  made,  the  foreign  attachment  inures  solely 
to  the  beneflt  of  the  party  suing  it  out,  while  the  avails  of  the 
domestic  attachment  may  be  shared  by  other  creditors  who  come 
into  court  and  present  their  claims  for  that  purpose.  See  Albany 
City  Ins.  Co.  v.  Whitney,  70  Penn.  St.  248 ;  Fuller  v.  Bryan, 
20  id.  144.  In  the  States  of  New  England  an  attachment  is  an 
incident  of  the  summons  in  all  actions  ex  contractu.    See  1 


412  ATTACHMENT. 

Bouv.  Diet.  163.  But  in  the  other  States  the  writ  issues  only 
upon  cause  shown  by  affidavit.  See  Biggs  v.  Blue,  5  McLean, 
148  ;  Foster  v.  Jo7ies,  1  McCord  (S.  C),  116  ;  Clark  v.  Garther,  6 
Ala.  139  ;  Rale  v.  C7iandler,  3  Mich.  531 ;  Black  v.  Brisbm,  3 
Minn.  360 ;  Courrier  v.  Oleghorn,  3  Iowa,  523 ;  Van  KirTt  v. 
Wilds,  11  Barb.  (N.  Y.)  520 ;  Bowen  v.  Slocum,  17  Wis.  181 : 
PancaJce  v.  Harris,  10  Serg.  &  R.  (Penn.)  109 ;  Messner  v. 
HutcMns,  17  Tex.  597.  And  in  most  of  the  States  a  caution- 
ary or  security  bond  is  required  to  be  executed  by  the  plaintiff 
and  sureties,  to  indemnify  the  defendant  against  damage  result- 
ing from  the  attachment.  See  Stemnson  v.  Bobbins,  5  Mo.  18 ; 
Kellogg  v.  Miller,  6  Ark.  468  ;  Dams  v.  Marshall,  14  Barb.  (N. 
Y.)  96  ;  HucTieson  v.  Ross,  2  A.  K.  Marsh.  (Ky.)  349 ;  Ford  v. 
Hurd,  4  Sm.  &  M.  (Miss.)  683  ;  Garriberford  v.  Hall,  3  McCord 
(S.  C),  345.  The  grounds  upon  which  the  writ  issues  differ  in 
the  various  States.  But  where  an  affidavit  is  required  as  the 
basis  of  an  attachment,  it  must  verify  the  plaintiff's  cause  of 
action,  and  also  the  existence  of  some  one  or  more  of  the  grounds 
of  attachment  prescribed  by  the  local  statute  as  authorizing  the 
issue  of  the  writ.  See  Voshurgh  v.  WelcTi,  11  Johns.  (N.  Y.) 
175 ;  Mott  V.  Lawrence,  17  How.  (N.  Y.)  559  ;  Pierce  v.  Smith, 
1  Minn.  82  ;  McCollem  v.  WJiite,  23  Ind.  43  ;  Mauley  v.  Headley^ 
10  Kans.  88  ;  Fallon  v.  Ellison,  3  Neb.  63 ;  Garner  v.  White^  23 
Ohio  St.  192. 

ARTICLE  II. 

IN"  WHAT  ACTIONS  ALLOWED. 

Section  1 .  In  general.  As  a  general  rule,  the  issuing  of  an 
attachment  is  allowed  only  in  actions  upon  an  indebtedness  due 
on  contract  expressed  or  implied.  And,  although  the  plaintiff 
should,  in  his  affidavit  for  procuring  an  attachment,  allege  a 
cause  of  action  founded  on  contract,  yet  if  it  appears,  either 
from  the  declaration  or  the  evidence,  that  the  true  cause  of  action 
is  not  of  that  character,  it  is  the  duty  of  the  court  to  dismiss  the 
suit.  Elliott  V.  Jackson,  3  Wis.  649.  The  claim  of  an  attach- 
ing creditor  need  not,  however,  be  so  certain  as  to  fall  within  the 
technical  definition  of  a  debt,  or  as  to  be  susceptible  of  liquida- 
tion without  the  intervention  of  a  jury.  Lenox  v.  Howland,  3 
Caines  (N.  Y.),  322.  If  the  demand  be  one  arising  out  of  con- 
tract, and  the  contract  furnishes  a  standard  by  which  the  amount 
due  could  be  so  clearly  ascertained  as  to  enable  the  plaintiff  to 


i 


ATTACHMENT.  413 

aver  it  in  his  affidavit,  or  the  jury  by  their  verdict  to  find  it,  an 
attachment  may  issue.  Peter  v.  Butler^  1  Leigh  (Va.),  285; 
Wilson  V.  Wilson,  8  Gill  (Md.),  193;  Weaver  v.  Puryear,  11 
Ala.  (N.  S.)  941 ;  Bunt  v.  Worris,  4  Mart.  (La.)  517 ;  Bausman 
V.  Smith,  2  Ind.  374.  See  Strock  v.  Little,  45  Penn.  St.  416  ;  Por- 
ter V.  Hildehrand,  14  id.  129  ;  New  Haven  Saw-Mill  Co.  v.  Fow- 
ler, 28  Conn.  103.  And  in  some  of  the  States  an  attachment 
may,  in  certain  cases,  issue  upon  a  debt  not  yet  due  and  payable. 
But  it  must  be  an  actual  subsisting  debt,  which  will  become  due 
by  the  efflux  of  time,  and  not  be  merely  possible,  and  dependent 
on  a  contingency  that  may  never  happen.  Taylor  v.  Drane,  13 
La.  62;  Henderson  v.  TJiornton,  37  Miss.  448;  Benson  v. 
Campbell,  15  Ala.  455  ;  Bacon  v.  Marshall,  37  Iowa,  581 ;  Cox 
V.  Reinhardt,  41  Texas,  691.  See  Brace  v.  Grady,  36  Iowa, 
352  ;  Jones  v.  Holland,  47  Ala.  732. 

ARTICLE  III. 

I2S"  WHAT  ACTI0I5rS  NOT  ALLOWED. 

Section  1.  In  general.  The  remedy  by  attachment  is  very 
generally  restricted  by  statute  to  creditors ;  hence,  it  has  been 
uniformly  held  not  to  lie  where  the  gravamen  of  the  action  is  a 
tort.  Thus,  an  attachment  does  not  lie  in  an  action  of  trespass 
{Ferris  v.  Ferris,  25  Vt.  100.  See  Linscott  v.  Fuller,  57  Me. 
406) ;  or  trover  {Marshall  v.  White,  8  Porter  [Ala.],  551) ;  nor 
for  assault  and  battery  {Thompson  v.  Carper,  11  Humph.  [Tenn.] 
542) ;  nor  for  a  malicious  prosecution  {Tarhell  v.  Bradley,  27 
Vt.  535) ;  nor  in  an  action  against  a  common  carrier,  to  recover 
damages  for  the  loss  of  goods  by  his  negligence  {Atlantic  Mut. 
Ins.  Co.  V.  McLoon,  48  Barb.  [N.  Y.]  27 ;  Porter  v.  Hildehrand, 
14  Penn.  St.  129) ;  nor  in  an  action  for  breach  of  promise 
of  marriage  {Barnes  v.  Buck,  1  Lans.  [N.  Y.]  268.  See  Mor- 
ton V.  Pearman,  28  Ga.  323) ;  nor  in  an  action  to  recover 
back  money  deposited  under  an  executory  contract,  on  the 
ground  of  fraud  {Knapp  v.  Meigs,  11  Abb.  N.  S.  [N.  Y.]  405) ; 
nor  in  an  action  to  recover  damages  alleged  to  have  been  sus- 
tained by  the  plaintiff,  in  consequence  of  a  wrongful  sale  of  his 
property  under  execution.  Oreiner  v.  Prendergast,  3  La.  Ann. 
376.  See,  also,  Prewitt  v.  Carmichael,  2  id.  943  ;  Oriswold  v. 
Sharpe,  2  Cal.  17 ;  Strock  v.  Little,  45  Penn.  St.  416 ;  Saddles- 
vene  v.  Arms,  32  How.  (N.  Y.)  280.  Where  articles  of  agree- 
ment for  the  exchange  of  property,  provided  that  if  either  party 


414  ATTACHMENT. 

failed  to  comply  with  the  conditions  of  the  contract  he  should 
pay  to  the  other  a  named  sum,  or  more,  if  more  damage  should 
be  proved,  as  fixed  or  liquidated  damages,  it  was  held  that  the 
sum  named  in  the  contract  was  in  the  nature  of  a  penalty,  and 
could  not  be  recovered,  as  liquidated  damages  by  attachment. 
Hoiigli  V.  Kugler,  36  Md.  186.  See  Crossman  v.  Lindsley,  42 
How.  (N.  Y.)  107. 

It  has  been  held  in  Louisiana  that  an  action  by  attachment,  by 
one  general  partner  against  another,  for  an  amount  alleged  to  be 
due,  growing  out  of  the  transactions  of  the  partnership,  cannot 
be  maintained  {Levy  v.  Levy,  11  La.  581) ;  and  the  same  has  been 
held  in  South  Carolina.  Mice  v.  Beers,  1  Rice's  Dig,  75.  But 
in  Ohio,  under  a  statute  authorizing  an  attachment  in  an  action 
"for  the  recovery  of  money,"  it  was  held  that  it  might  be 
resorted  to  in  an  action  by  one  partner  against  his  copartner, 
after  the  dissolution  of  the  firm,  to  recover  a  general  balance 
claimed  upon  an  unsettled  partnership  account.  Gohle  v.  How- 
ard, 12  Ohio  St.  165  ;  and  see  Ward  v.  Howard,  id.  158  ;  Kerr 
V.  Hoffman,  65  Penn.  St.  126.  And  in  Minnesota,  under  a  statute 
using  the  same  terms  as  the  Ohio  statute,  it  was  held  that  an 
attachment  might  be  resorted  to  in  any  action,  either  ex  contractu 
or  ex  delicto.  Davidson  v.  Owens,  5  Minn.  69.  In  some  of  the 
States,  as  in  Georgia,  suits  by  attachment  are  authorized  by 
statute,  "in  all  cases  of  money  demands,  whether  arising  ex  con- 
tractu or  ex  delicto.''^  See  Monroe  v.  BisJtop,  29  Ga.  159  ;  Mor- 
ton V.  Pearman,  28  id.  323.  And  under  this  provision  it  was 
held,  that  an  attachment  could  be  resorted  to  in  an  action  for 
breach  of  a  promise  of  marriage.  lb. 

That  an  attachment  does  not  lie,  in  an  equitable  action,  or  in  a 
suit  for  purely  equitable  relief.  See  Ehner  v.  Bradford,  3  Abb. 
N.  S.  (N.  Y.)  248  ;  Guillion  v.  Lindo,  9  Bosw.  (N.  Y.)  601.  It 
will  not  lie  in  a  suit  for  an  injunction  and  damages  (Id.) ;  nor  in 
a  suit  for  the  foreclosure  of  a  mortage.  Van  WycTc  v.  Bauer,  9 
Abb.  N.  S.  (N.  Y.)  42.  But  in  a  proceeding  by  attachment  in 
chancery,  as  authorized  by  the  laws  of  Virginia,  it  was  held  that 
a  guarantor  might  maintain  a  bill  against  the  principal  debtor, 
in  order  to  protect  himself  against  loss  by  reason  of  the  debtor's 
failure,  before  he  has  actually  been  subjected  to  liability  as 
guarantor.     Moore  v.  Holt,  10  Gratt.  (Va.)  284. 

Under  the  practice  which  has  prevailed  in  the  district  court 
for  the  southern  district  of  New  York,  attachment  may  be 
issued  in  aid  of  a  common-law  information  prosecuted  by  the 
United  States.    United  States  v.  Stevenson,  1  Abb.  (U.  S.)  495. 


ATTACHMENT.  415 

ARTICLE  IV. 

IN  WHOSE   FAVOR  ISSUED. 

Section  1.  In  general.  Resort  to  the  remedy  by  attacliment  is 
in  general  allowed  only  to  a  creditor.  And  a  creditor  is  defined 
to  be  one  "  who  has  a  right  to  require  the  fulfillment  of  an  obli- 
gation or  contract."  1  Bouv.  Diet.  409.  And  see  1  Burr.  Diet. 
399  ;  Mill-dam  Foundry  v.  Homy,  21  Pick.  (Mass.)  417,  45.5 ; 
Carver  v.  Braintree  If  an.  Co.,  2  Story,  432.  In  the  absence  of 
any  statutory  provision  to  the  contrary,  non-residents,  as  well 
as  residents,  may  avail  themselves  of  the  remedy  to  secure  debts 
due  them.  Ward  v.  McKenzie,  33  Tex.  297  ;  Tyson  v.  Lansing, 
10  La.  144 ;  Graham  v.  Bradbury,  7  Mo.  281 ;  Calhoun  v.  Coz. 
zens,  3  Ala.  21 ;  Ready  v.  Steicart,  1  Code  R.  (N.  S.)  W.  Y.  297. 
And  the  right  to  the  remedy  passes  as  an  incident  of  the  demand 
by  a  general  assignment  thereof,  to  the  assignee.  Wliitman  v. 
Keith,  18  Ohio  St.  134  ;  McBride  v.  Farmers'  Bank,  26  N.  Y. 
(12  Smith)  450.  So,  it  has  been  held  that  the  assignee  of  a  chose 
in  action  may  sue  a  foreign  corporation  by  attachment,  though 
his  assignor  was  not  entitled  to  such  process.  Id. 

ARTICLE  V. 

AGAINST  WHOM   ISSUED. 

Section  1.  In  general.  The  persons  against  whom  attachments 
are  generally  authorized  may  be  classed  under  the  heads  of 
absent,  absconding,  concealed  and  non-resident  debtors.  And 
corporations,  like  natural  persons,  may  incur  a  liability  to  the 
process  of  attachment.  Lihhey  v.  Hodgdon,  9  N.  H.  394  ;  Botoen 
V.  Bank  of  Medina,  34  How.  (N.  Y.)  408 ;  Andrews  v.  Michigan 
Central  R.  R.  Co.,  99  Mass.  534.  Where  several  persons  are 
liable  for  the  same  debt,  any  one  or  more  of  them,  in  relation  to 
whom  any  ground  of  attachment  exists,  may  be  proceeded 
against  by  attachment,  without  so  proceeding  against  the  others. 
Austin  V.  Burgett,  10  Iowa,  302  ;  Chittenden  v.  Robbs,  9  id.  417; 
Brewster  v.  Eonigsburger,  2  Code  R.  (N.  Y.)  50. 

§  2.  Absent  debtors.  The  issuing  of  an  attachment  is  never 
justifiable  upon  a  mere  casual  and  temporary  absence  of  a 
debtor.  See  Pitts  v.  Burroughs,  6  Ala.  733  ;  Mandell  v.  Peet, 
18  Ark.  236 ;   Watson  v.  Plerpont,  7  Mart.  (La.)  413.    It  must  be 


416  ATTACHMENT. 

an  absence  of  such  a  character  that  the  ordinary  process  of  law 
cannot  be  served  on  the  debtor.  See  Clark  v.  Pratt  19  La.  Ann. 
102  ;  Matter  of  TJiompson,  1  Wend.  (N.  Y.)  43  ;  Fuller  v.  Bryan, 
20  Penn.  St.  144  ;  Morgan  v.  Avery,  7  Barb.  (N.  Y.)  Qm. 

And  it  has  been  held,  that  where  the  absence  is  such^  that  if  a 
summons  issued  upon  the  day  the  attachment  is  sued  out,  will 
be  served  upon  tlie  defendant  in  sufficient  time  before  the  return 
day  to  give  the  plaintiff  all  the  rights  which  he  can  have  at  the 
return  term,  the  defendant  has  not  so  absented  himself  as  that 
the  ordinary  process  of  law  cannot  be  served  upon  him.  Elling- 
ton v.  Moore,  17  Mo.  424 ;  Kingsland  v.  Worsliam,  15  id.  657  ; 
Fitch  v.  Watte,  5  Conn.  117.  In  Kentucky,  the  term  "absent 
defendants  "  was  held  to  include  only  such  as  were,  at  the  com- 
mencement of  the  suit,  actually  absent  from  the  State.  ClarJc  v. 
Arnold,  9  Dana,  305.  And  under  the  statute  of  the  same  State, 
authorizing  an  attachment  where  the  debtor  ''  has  been  absent 
from  the  State  four  months,"  it  was  held  that  where  the  debtor 
leaves  his  home,  with  the  intention  of  going  out  of  the  State, 
and  consummates  his  purpose,  being  absent  from  his  home, 
pursuant  to  such  intention,  for  the  period  of  four  months,  it 
must  be  regarded  as  an  absence  from  the  State,  and  a  ground 
for  an  attachment,  although  some  unlooked-for  casualty  may 
nave  delayed  him  a  few  days  from  passing  beyond  the  territorial 
boundary  of  the  State.     Spalding  v.  8lmms,  4  Mete.  (Ky.)  285. 

§  3.  Albscondiug  debtors.  To  abscond,  in  a  legal  sense,  means 
to  hide,  conceal,  or  absent  one's  self  clandestinely,  with  the 
intent  to  avoid  legal  process.  Bennett  v.  Avant,  2  Sneed  (Tenn.), 
152  ;  and  see  Ives  v.  Curtis,  2  Root  (Conn.),  133.  And  if  a  per- 
son departs  from  his  usual  residence,  or  remains  absent  there- 
from, or  conceals  himself  in  his  house,  so  that  he  cannot  be 
served  with  process,  with  intent  unlawfully  to  delay  or  defraud 
his  creditors,  he  is  an  absconding  debtor.  But  if  he  depart 
from  the  State,  or  from  his  usual  abode,  with  the  intention  of 
again  returning,  and  without  any  fraudulent  design,  he  has  not 
absconded,  within  the  intendment  of  the  law.  Fitch  v.  Waite, 
5  Conn.  117 ;  and  see  Oliver  v.  Wilson,  29  Ga.  642  ;  House  v. 
Hamilton,  43  111.  185  ;  Boardman  v.  Bickford,  2  Aik.  (Vt.)  345. 
There  must  be  an  intent  to  abscond ;  and  a  public  and  open 
removal,  or  a  departure  without  such  intent,  will  not  constitute 
an  absconding.  Id. ;  Matter  of  Fitzgerald,  2  Caines  (N.  Y.),  318. 
It  has  been  held,  however,  that  if  the  purpose  to  remove  exists, 
and  may  be  carried  out  in  one,  two,  three  or  several  weeks  or 


ATTACHMENT.  417 

months,  and  the  object  is  to  evade  or  delay  creditors,  the  writ 
may  issue.  And  this  purpose,  like  all  other  motives,  may  be 
inferred  from  the  speeches,  acts,  and  conduct  of  the  party, 
although  his  movements  may  not  be  characterized  by  "fright," 
"speed"  or  "haste."  Myers  v.  Farrell,  47  Miss.  281 ;  and  see 
Boss  V.  Clark,  32  Mo.  296.  Under  the  statute  of  Illinois,  author- 
izing an  attachment  to  issue  in  case  a  "debtor  conceals  himself, 
etc.,  so  that  process  cannot  be  served  upon  him,"  it  is  not  neces- 
sary that  process  should  be  first  served,  or  that  an  attempt 
should  be  made  by  an  officer  to  find  the  debtor.  If  he  conceals 
himself  so  that  an  attempt  to  serve  process  would  be  useless,  it 
is  sufficient.  North  v.  McDonald,  1  Biss.  57.  "Abscofiding  and 
concealing,"  as  used  in  the  Kansas  Code  of  Procedure,  refer  to 
such  conduct  only  as  prevents  the  service  of  process  in  the  State. 
Hoggett  v.  Emerson,  8  Kans.  262., 

The  act  of  absconding  is  a  personal  act,  and  can  be  alleged 
only  of  him  who  has  done  it.  An  attachment  cannot,  therefore, 
be  sustained  against  a  partnership,  as  absconding  or  concealed 
debtors,  unless  all  the  members  of  the  firm  have  absconded,  or 
have  kept^concealed.  Leach  v.  Cook,  10  Vt.  239  ;  and  see  Bry- 
anty.  Simoneau,  51  111.  324.  And  as  "concealment,"  such  as 
will  authorize  an  attachment,  must  be  with  the  intent  to  defeat 
or  delay  the  claims  of  creditors,  by  avoiding  the  service  of  pro- 
cess, one  who  conceals  himself  for  the  purpose  of  avoiding  a 
criminal  prosecution  is  not  within  the  purview  of  the  law. 
Lynde  v.  Montgomery,  15  Wend.  461 ;  Evans  v.  Saul,  8  Mart. 
N.  S.  (La.)  247;  hnt  see  Mayor  of  New  York  v.  Genet,  4  Hun,  487. 

§  4.  Removal,  or  fraudulent  disposition  of  property  by  debtors. 
Allegations  of  dissipated  habits,  great  improvidence  and  utter 
insolvency,  and  of  the  plaintiffs  belief  that  the  defendant  "will 
dispose  of"  his  property  in  order  to  defraud  his  creditors,  have 
been  held  insufficient  to  make  out  a  case  for  an  attachment. 
Jackson  v.  Burke,  4  Heisk.  (Tenn.)  610.  So,  a  shipment  of  cot- 
ton from  Alabama  by  the  usual  route,  for  the  honest  purposes 
of  trade,  by  a  citizen  who  has  means  in  the  State  sufficient  to 
pay  all  his  debts,  will  not  justify  the  issuing  of  an  attachment 
against  his  estate,  on  the  ground  that  he  is  about  to  remove  his 
property  out  of  the  State,  so  that  the  plaintiff  will  probably 
lose  his  debt,  or  have  to  sue  for  it  in  another  State.  Steioart  v. 
Cole,  46  Ala.  646 ;  and  see  Montague  v.  Gaddis,  37  Miss.  453  ; 
Runyan  v.  Morgan,  7  Humph.  (Tenn.)  210.  An  affidavit  which 
states  that  the  affiant  has  good  reason  to  believe,  and  does  believe, 

Vol.  L  — 53 


418  ATTACHMENT. 

that  the  debtor  has  assigned,  disposed  of,  or  concealed,  or  is 
about  to  assign,  dispose  of,  or  conceal,  any  of  his  property,  with 
intent  to  defraud  his  creditors,  and  merely  following  the  words 
of  the  statute,  is  not  sufficient  to  authorize  the  issuing  of  an 
attachment  against  the  debtor's  property.  Miller  v,  3funson, 
34  Wis.  579  ;  S.  C,  17  Am.  Eep.  461.  But  where  an  attachment 
was  obtained  on  the  ground  that  the  defendant  was  about  to 
fraudulently  conceal,  remove,  or  dispose  of  his  property  or 
effects,  so  as  to  hinder  or  delay  his  creditors,  it  was  held  not 
necessary  to  show  that  he  was  about  so  to  dispose  of  all  his 
property'',  but  that  the  attachment  would  be  sustained,  if  he  was 
about  so  to  dispose  of  any  part  of  it.  Taylor,  v.  Myers,  84  Mo. 
81.  Under  the  Kansas  civil  code,  the  assignment  of  any  por- 
tion of  a  debtor's  property,  for  the  purpose  of  defrauding  his 
creditors,  is  a  ground  for  an  order  of  attachment.  Johnson  v. 
Lauglilin,  7  Kans.  359.  And  in  Oregon  an  attachment  will  be 
granted  against  the  goods  of  a  debtor  who  is  about  to  dispose 
of  them  with  intent  to  delay  or  defraud^  the  plaintiff  in  the 
action,  without  reference  to  the  defendant's  conduct  or  purpose 
as  to  his  other  creditors.     Haiglette  v.  Lealce,  Deady,  469. 

To  sustain  an  attachment  in  chancery,  it  is  necessary  to  show 
a  fraudulent  intent  before  the  suing  out  of  the  attachment.  To 
prove  it  to  have  originated  afterward  will  not  be  sufficient. 
Warner  v.  Emrett,  7  B.  Monr.  (Ky.)  262. 

A  threat  by  a  debtor  that  he  would  assign  and  put  his  prop- 
erty out  of  his  hands,  made  in  words  which  may  be  construed 
to  mean  that  he  would  make  a  lawful  assignment,  is  not,  without 
any  evidence  of  contemporaneous  or  subsequent  acts  showing  a 
fraudulent  intent,  a  sufficient  ground  for  an  attachment.  Wilson 
Y.Britton,  26  Barb.  (N.  Y.)  562;  S.  C,  6  Abb.  97;  and  see 
DlcJdnson  v.  Benham,  10  id.  390  ;  S.  C,  19  How.  410.  But  see 
Gasherie  v.  Apple,  14  Abb.  (N.  Y.)  64.  And  where  a  debtor 
refused  to  pay  his  note  on  demand,  and  was  told  by  the  creditor 
that  he  would  be  sued,  and  that  the  debtor  thereupon  threatened 
that  if  he  was  sued,  he  would  turn  over  all  his  property,  and  that 
the  creditor  "would  not  get  a  cent,"  it  was  held  that  this  threat 
evidenced  an  intention  to  dispose  6f  his  property  so  as  to  baffle 
the  creditor  in  the  speedy  collection  of  his  debt,  and  the  attach- 
'ment  was  sustained.  Livermore  v.  Rhodes,  3  Rob.  (N.  Y.)  626 ; 
S.  C,  27  How.  506. 

§  5.  Non-resident  debtors.  The  non-residence  of  the  debtor  is 
a  common  statutory  ground  authorizing  an  attachment  to  issue 


ATTACHMENT.  419 

against  liim,  but  mere  temporary  absence  from  the  State,  on 
business  or  pleasure,  of  one  who  has  a  domicile  therein,  does 
not  make  such  person  a  non-resident  within  the  meaning  of  the 
attachment  law.  Alston  v.  Newcomer,  42  Miss.  186 ;  see  Meek 
V.  Fox,  id.  513.  And  it  has  been  held  that  a  departure  from 
home  with  intent  to  return,  though  followed  by  many  years' 
absence,  but  without  any  unequivocal  act  signifying  a  purpose 
to  change  the  domicile,  will  not  defeat  one's  claim  to  the  protec- 
tion of  his  property  from  seizure  as  property  of  a  non-resident. 
Egan  v.  Lumsden,  2  Dis.  (Ohio)  168.  He  must  have  a  fixed 
abode  elsewhere,  with  the  intention  of  remaining  there,  for  a 
definite  period,  for  business  or  other  purposes.  Alston  v.  New- 
comer, 42  Miss.  186 ;  Perrine  v.  Evans,  35  N.  J.  L  221 ;  Hennen 
V.  Hennen,  12  La.  190 ;  Pfoutz  v.  Comford,  36  Penn.  St.  420 ; 
see  Bobbins  v.  Alley,  38  Ind.  553. 

The  remedy  by  attachment  against  a  non-resident  is  not 
defeated  by  his  accidental  or  transient  presence  within  the  State 
{Jackson  v.  Perry,  13  B.  Monr.  [Ky.]  231) ;  nor  by  the  fact  that 
he  is  engaged  in  business  therein,  when  his  personal  domicile  is 
in  another  State.  Payne  v.  Taylor,  10  La.  Ann.  726 ;  Perrine 
V.  Evans,  35  N.  J.  L.  221.  Thus,  it  is  held  that  one  who  carries 
on  business  in  the  State  of  New  York,  but  who  maintains  his 
family  in  another  State,  and  frequently  resorts  to  his  home  with 
them  there,  may  be  deemed  a  non-resident  of  New  York  within 
the  attachment  laws  of  that  State,  although  he  has  furnished 
apartments  at  his  place  of  business  in  New  York,  and  habitually 
lodges  and  takes  his  meals  there.  3furp7iy  v.  Baldwin,  41  How. 
(N.  Y.)  270 ;  S.  C,  11  Abb.  (N.  S.)  407.  See,  also,  Barry  v.  Bock- 
over,  6  Abb.  (N.  Y.)  374;  Lee  y.  Stanley,  9  How.  (N.  Y.)  272. 
So,  a  non-resident  of  Georgia,  who  is  lessee  of  a  railroad  in  that 
State,  and  liable  to  be  sued  as  a  railroad  compan}^,  is  not,  on 
that  account,  exempted  from  proceedings  by  attachment,  like 
other  non-residents.     Breed  v.  MitcTiel,  48  Ga.  533. 

If  one  of  two  partners  is  a  non-resident,  this  is  held  to  author- 
ize an  attachment  against  him,  leviable  upon  his  interest  in  the 
partnersliip  property.  McHenry  v.  Cawthorn,  4  Heisk.  (Tenn.) 
508.  See  Lobdell  v.  BusUnell,  24  La  Ann.  295;  Conklin  v.  Har- 
ris, 5  i\la.  213;  Wiley  y.  Sledge,  8  Ga.  532.  And  under  the 
laws  of  Kansas,  where  one  of  two  contractors  is  a  n on  resident 
of  the  State  and  the  other  a  resident,  an  attachment  may  be  sued 
out  and  maintained  against  the  former.  Jefferson  County  v. 
Swain,  5  Kans.  876. 


420  ATTACHMENT. 

Where  one  had  conveyed  away  his  property  in  trust  to  pay 
his  debts,  and  had  left  his  place  of  residence  with  the  intention 
of  removing  from  the  State,  the  court  held  that  he  was  a  non- 
resident in  the  sense  of  the  Virginia  attachment  law,  although  he 
Avas  within  the  State  at  the  time  of  the  attachment.  Clarlc  v. 
Ward^  12  Gratt.  (Va.)  440.  And  in  the  attachment  law  of  the 
State  of  Maryland,  the  word  citizen  is  used  in  reference  to  per- 
sons liable  to  be  proceeded  against  by  attachment,  and  it  was 
held  that  an  unauthorized  alien  residing  and  doing  business  in 
the  State,  is  for  commercial  purposes  a  "citizen"  in  contempla- 
tion of  the  attachment  laws.  Field  v.  Adreon,  7  Md.  209.  See 
Biserwiclc  v.  Davis,  19  id.  82.  In  Georgia,  under  a  statute 
authorizing  an  attachment  of  the  goods  of  a  defendant  "actu- 
ally removing  out  of  the  county,"  it  was  held  that  the  goods  of 
one  not  a  resident  of  the  State,  but  who  was  passing  through  it, 
could  be  attached.  Johnson  v.  Lowry,  47  Ga.  560;  S.  C,  15, 
Am.  Eep.  655. 

One  who  enlists  in  the  volunteer  military  service  of  the  United 
States,  or  who  is  drafted  into  such  service,  and  departs  from  the 
place  of  his  domicile  to  a  point  out  of  the  State,  in  the  perform- 
ance of  military  duty,  with  an  intention  to  return  at  the  expira- 
tion of  his  term  of  service  to  his  former  abode,  does  not  thereby 
lose  his  residence  within  the  State.  Tibhitts  v.  Townsend^  15 
Abb.  (N.  Y.)  221.  But  if  a  person  voluntarily  absents  himself 
from  his  residence  or  country  with  the  intention  of  engaging  in 
hostilities  against  the  latter,  he  cannot  be  permitted  to  complain 
of  legal  proceedings  regularly  prosecuted  against  him  as  an 
absentee,  on  the  ground  of  his  inability  to  return  or  to  hold  com- 
munication with  the  place  where  the  proceedings  are  conducted. 
Ludlow  V.  Ramsey,  11  Wall.  (U.  S.)  581 ;  Foreman  v.  Carter,  9 
Kans.  674. 

One  who  has  been  convicted  of  a  serious  criminal  offense,  and 
who  escapes  before  sentence  and  keeps  concealed,  so  that  no 
efforts  to  find  him  are  successful,  is  a  non-resident  in  such  a 
sense  that  an  attachment  may  be  issued  against  his  property. 
Mayor  of  New  York  v.  Oenet,  4  Hun,  487. 

As  the  legal  residence  of  a  wife  follows  that  of  her  husband 
( Williams  v.  Saunders,  5  Cold.  [Tenn.]  60 ;  Greene  v.  Greene, 
11  Pick.  [Mass.]  411  ;  Sanderson  v.  Ralston,  20  La.  Ann.  312) ; 
she  may,  conjointly  with  hira,  be  proceeded  against  by  attach- 
ment as  a  non-resident  of   the  State  in  which  she   actually 


ATTACHMENT.  421 

resides,  if  her  husband  be  a  resident  of  another  State.    Hack- 
ettstown  Bank  v.  Mitchell,  4  Dutch.  (N.  J.)  516. 

See  the  questions  of  residence  and  domicile  in  connection  with 
attachment  laws,  discussed  in  Brown  v.  AsTibough,  40  How.  (IST. 
Y.)  260  ;  Moore  v.  Holt,  10  Gratt.  (Ya.)  284  ;  McCollem  v.  White, 
23  Ind.  43;  Farrow  v.  Barker,  3  B.  Monr.  (Ky.)  217  ;  Nailor  v. 
French,  4  Yeates  (Penn.),  241. 

§  6.  Corporations.  Doubts  have  been  entertained  as  to  the 
liability  of  corporation  to  attachment ;  and  in  an  early  case  in 
New  York  the  Supreme  Court  set  aside  an  attachment  on  the 
ground  that  a  statute  which  authorized  attachments  against 
the  estates  of  non-resident  debtors,  generally,  did  not  apply  to 
foreign  corporations.  McQueen  v.  Middletown  Man.  Co.,  16 
Johns.  5.  xlnd  the  same  principle  has  been  elsewhere  recognized. 
See  PeckJiam  v.  North  Parish,  etc.,  16  Pick.  (Mass.)  286  ;  La- 
fayette Ins.  Co.  V.  French,  18  How.  (U.  S.)  404  ;  Clark  v.  New 
Jersey  Steam  Nav.  Co.,  1  Story,  531.  The  contrary  doctrine 
has,  however,  been  announced  in  the  decisions  of  the  courts  of 
many  of  the  States,  and  it  may  be  regarded  as  settled,  that  cor- 
porations, like  natural  persons,  may  be  proceeded  against  by 
attachment.  See  Lihhey  v.  Hodgdon,  9  N.  H.  394;  St.  Louis 
Perpetual  Lis.  Co.  v.  Cohen,  9  Mo.  421 ;  Wilson  v.  Banforth, 
47  Gra.  676 ;  Bushel  v.  Com.  Ins.  Co.,  15  Serg.  &  Rawle,  173  ; 
Martin  v.  Branch  Bank,  14  La.  415 ;  Union  BanJc  v.  U.  S.  Bank, 
4  Humph.  (Tenn.)  369  ;  Mineral  Point  R.  R.  Co.  v.  Keep,  22 
111.  9 ;  First  National  Bank  v.  Colby,  46  Ala.  435 :  Andreios  v. 
Michigan  Central  R.  R.  Co.,  99  Mass.  534.  In  some  of  the 
States  corporations  are  expressly  subjected  by  statute  to  attach- 
ment process.  See  Barnett  v.  Chicago  &  Lake  Huron  R.  R.  Co., 
4  Hun  (N.  Y.),  114 ;  S.  C,  6  N.  Y.  S.  C.  (T.  &  C.)  358  ;  Ahem  v. 
National  Steamship  Co.,  11  Abb.  N.  S.  (N.  Y.)  356  ;  S.  C,  3 
Daly,  399. 

§  7.  Persons  in  a  representative  capacity.  It  is  the  general  rule, 
that  representative  persons,  such  as  heirs,  executors,  adminis- 
trators, trustees,  and  others,  claiming  merely  by  right  of  repre- 
sentation, are  not  liable  to  be  proceeded  against,  as  such,  by 
attachment.  Jackson  v.  Walsworth,  1  Johns.  Cas.  (N.  X.)  372  ; 
Taliaferro  v.  Lane,  23  Ala.  369 ;  Peacock  v.  Wildes,  3  Halst. 
(N.  J.)  179  ;  Matter  of  Hurd,  9  Wend.  (N.  Y.)  465 ;  Williamson 
V.  Beck,  1  Leg.  Gaz.  Rep.  (Penn.)  200 ;  see  Holloway  v.  Chiles, 
40  Ga.  346.  But  where  an  executor  or  administrator,  in  the 
course  of  the  discharge  of  his  duties  as  such,  becomes  ^j)e?',so;2- 


422  ATTACHMENT. 

ally  liable,  the  rule  is  otherwise.  Matter  of  Galloway,  21 
Wend.  (N.  Y.)  32  ;  Ililler  v.  Knox,  48  N.  Y.  (3  Sick.)  232.  So, 
a  creditor  of  an  absent  debtor,  who  is  one  of  the  heirs  and  dis- 
tributees of  a  deceased  intestate,  in  Virginia,  may  go  into  a 
court  of  equity  for  the  purpose  of  having  a  division  and  dis- 
tribution of  the  estate  of  the  decedent,  and  of  procuring  pay- 
ment of  his  debt,  out  of  the  share  of  the  absent  debtor  in  the 
estate.  Moores  v.  White,  3  Gratt.  139  ;  and  see  Carrington  v. 
Didier,  8  id.  260. 

ARTICLE  YI. 

WHAT  PROPERTY  MAY   BE  TAKEN" 

Section  1.  Real  estate.  The  interests  in  real  estate  which  may 
be  subject  to  attachment,  the  requisites  of  an  attachment  of  real 
estate,  etc.,  are  matters  very  much  dependent  on  the  law  of  each 
State.  But  the  general  principle,  that  whatever  may  be  sold 
under  execution  may  be  attached,  applies  as  well  to  real  as  to 
personal  property.  See  Spencer  v.  Blaisdell,  4  N.  H,  198 ;  Lee 
V.  Hunter,  1  Paige  (N.  Y.),  519  ;  Doyle  v.  Sleeper,  1  Dana  (Ky.), 
531 ;  Bullene  v.  Hiatt,  12  Kans.  98.  So,  in  the  absence  of  any 
positive  limitation  of  the  right  of  attachment,  an  attachment  of 
real  estate  is  valid,  although  the  defendant  has  personal  property 
sufficient  to  satisfy  the  demanded  debt.  Isliam  v.  Downer,  8 
Conn.  283 ;  see  Weathers  v.  Mudd,  12  B.  Monr.  (Ky.)  112.  It 
is,  however,  an  established  principle,  peculiarly  applicable  to 
attachments  of  real  estate,  that  the  attachment  can  operate  only 
upon  the  right  of  the  debtor  existing  at  the  time  it  is  made. 
Crocker  v.  Pierce,  31  Me.  177.  And  no  subsequently-acquired 
title  of  the  debtor  can  be  held  by  it.  Id.  It  follows  that  the  levy 
of  an  attachment  upon  real  estate,  after  the  defendant  in  the 
attachment  has  conveyed  by  deed,  is  ineffectual  as  against  the 
grantee  in  the  deed.  And  the  facts  that  the  deed  has  not  been 
recorded,  and  that  the  attaching  creditor  had  no  notice  of  the 
sale,  are  held  to  be  immaterial.  Plant  v.  Smythe,  45  Cal.  161 ; 
Cox  V.  Milner,  23  111.  476.  As  it  regards  the  question,  whether 
a  mortgagee  of  real  estate  has  an  attachable  interest  therein,  it 
would  seem  to  be  the  settled  doctrine  that,  before  an  entry  for 
condition  broken,  with  a  view  to  foreclosure,  he  has  not.  See 
Thornton  v.  Wood,  42  Me.  282 ;  Fay  v.  Cheney,  14  Pick.  (Mass.) 
399.  And  it  has  also  been  held  that  the  interest  of  a  mortgagee 
cannot  be  attached  any  more  after  entry  than  before.    Smith  v. 


ATTACHMENT.  423 

People's  Bank,  24  Me.  185  ;  see  Gourtney  v.  Carr,  6  Iowa,  238 , 
Lane  v.  Marshall,  1  Heisk.  (Tenn.)  30.  That  the  equitable 
interest  of  a  debtor,  in  real  property,  is  subject  to  attachment, 
as  well  as  the  absolute  right  to  real  property  under  a  legal  title. 
See  Lee  v.  Hunter,  1  Paige  (N.  Y.),  519 ;  Bullene  v.  Hlatt,  12 
Kans.  98. 

One  who  occupies  land  under  a  contract  of  purchase,  with 
the  right  to  cut  and  sell  wood  growing  thereon,  upon  condition 
of  accounting  to  the  owners,  for  the  receipts,  after  reimbursing 
his  expenses,  has  no  attachable  interest  in  the  wood.  Proms  v. 
Chems,  9  R.  I.  53. 

§  2.  Personal  property.  The  personal  property  subject  to 
attachment  includes  generally  all  that  property  of  the  defendant 
not  included  in  the  term  "real  estate,"  which  is  subject  to 
execution.  And  it  is  stated  as  a  general  rule,  that  whatever  may 
be  levied  on  and  sold  under  execution  may  be  attached.  Spencer 
V.  Blalsdell,  4  N.  H.  198  ;  Smith  v.  Orser,  42  N.  Y.  (3  Hand)  132. 
Thus,  money  may  be  attached  in  specie.  Turner  v.  Fendall,  1 
Cranch,  117 ;  Prentiss  v.  Bliss,  4  Yt.  513.  So,  bank  notes  may 
be  attached.  Spencer  v.  Blalsdell,  4  N.  H.  198.  And  it  has 
been  said  that  treasury  notes  of  the  United  States  may  be  also 
attached.  State  v.  Lawson,!  Ark,  (2  Eng.)  391,  In  short,  every 
thing  belonging  to  the  debtor  whether  of  a  tangible  nature  or  not, 
except  chases  in  action,  and  articles  expressly  exempted  by  stat- 
ute, may  be  the  subject  of  attachment.  See  Handy  v.  Dobbin,  12 
Johns.  (N.  Y.)  220.  And  the  tendency  now  is,  in  many  of  the 
States,  to  authorize  the  attachment  of  things  in  action,  by  express 
statute.  See  Voddington  v.  Gilbert,  17  N.  Y.  (3  Smith)  489 ; 
Russell  V.  Buckman,  3  E.  D.  Smith  (N.  Y.),  419;  Brower  v. 
Smith,  17  Wis.  410 ;  Haley  v.  Reid,  16  Ga.  437. 


ARTICLE  VIT. 

WHAT   PKOPERTY  EXEMPT   FKOM. 

Section  1.  In  general.  Property  exempt  by  law  from  execu- 
tion cannot  be  attached  {Halsey  v.  Whitney,  4  Mason,  206  ; 
Davis  V.  Garret,  3  Ired.  [N.  C]  459  ;  Pierce  v.  Jackson,  6  Mass. 
242)  ;  without  the  consent  of  the  defendant  (see  Dow  v.  Clieney, 
103  Mass.  181 ;  Colson  v.  Wilson,  58  Me.  416) ;  or  unless  he  be 
proceeded  against  as  a  non-resident.  Yelverton  v.  Burton,  26 
Peun.  St.  351.     See  State  v.  Manly,  15  Ind.  8  ;  Scott  v.  Brigham, 


424  ATTACHMENT. 

27  Vt.  561.  Nor  can  property,  the  sale  of  which  is  penal,  be 
attached.  Nichols  v.  Valentine,  36  Me.  322.  And  if  property 
be  so  situated  that  the  defendant  has  lost  his  power  over  it,  as  in 
the  case  of  a  chattel  pawned  or  mortgaged  {Sargeant  v.  Carr, 
12  Me.  396  ;  Anderson  v.  Doak,  10  Ired.  [N.  C]  295) ;  or  per- 
sonalty leased  for  a  term  of  years  {SmitJi  v.  Niles,  20  Yt.  315. 
See  Hughes  v.  Kelly,  40  Conn.  148) ;  or  goods  upon  which  freight 
is  due  {De  Wolf  v.  Dearl)orn,  4  Pick.  [Mass.]  466) ;  or  property 
in  the  hands  of  a  bailee  for  hire  {Hartford  v.  Jackson,  11  N.  H. 
145  ;  Or  egg  v.  Nilson,  1  Leg.  Gaz.  Rep.  [Penn.]  128) ;  it  cannot 
be  attached  for  his  debt.  Personal  property  in  the  possession 
of  a  bailee,  having  a  lien  thereon,  cannot  be  taken  out  of  his 
possession  by  virtue  of  an  attachment  against  the  bailor.  Trus- 
low  v.  Putnam,  4  Abb.  Ct.  App.  (N.  Y.)  425.  So  property 
mortgaged  with  a  right  of  possession  in  the  mortgagor,  may, 
before  forfeiture,  be  taken  on  an  attachment  against  the  mort- 
gagor' s  property.  Hall  v.  Sampson,  23  How.  84  ;  35  N.  Y.  (8  Tiff.) 
274;  Fairbanks  V.  Bloomfield,  5  Duer,  434  ;  HamillY.  Gillespie^ 
48  N.  Y.  (3  Sick.)  556.  But  if  such  possessory  right  deter- 
mines while  the  property  mortgaged  is  in  the  hands  of  the 
sheriff,  the  property  must  be  released  to  the  mortgagee.  lb. 
So,  as  a  general  rule,  property  cannot  be  attached  as  the 
property  of  a  debtor  before  his  right  to  such  property  has 
become  fully  vested,  or  while  such  right  is  contingently  vested 
in  another.  See  Buckmaster  v.  Smith,  22  Vt.  203 ;  2  Wait's 
Pr.  162.  Thus,  goods  shipped  to  a  purchaser  are  not  subject 
to  an  attachment  against  him  while  the  right  of  stoppage 
in  transitu  remains  in  the  vendor.  Jones  v.  Bradner,  10  Barb. 
(N.  Y.)  193  ;  O'Brien  v.  Norris,  16  Md.  122  And  where  prop- 
erty is  sold  and  delivered,  upon  condition  that  the  title  shall  not 
vest  in  the  vendee,  unless  the  price  agreed  upon  be  paid  within 
a  specified  time,  the  vendee  has  no  attachable  interest  in  the 
property  until  performance  of  the  condition.  McFarland  v. 
Farmer,  42  N.  H.  386.  So,  property  lent  to  one  cannot  be 
attached  for  his  debt  {Chase  v.  Elkins,  2  Vt.  290) ;  nor  can  prop- 
erty consigned  to  a  factor  be  attached  for  his  debt,  though  he 
have  a  lien  on  it.  Holly  v.  Huggeford,  S  Pick.  (Mass.)  73.  And 
if  one  acquires,  by  purchase,  the  possession  of  personal  property 
by  fraudulent  means,  he  has  not  such  title  thereto  as  will  enable 
his  creditors  to  attach  and  hold  it  as  against  the  party  from  whom 
it  was  fraudulently  procured.  Bradley  v.  Ohear,  10  N.  H.  477  ; 
Oalbraith  v.  Davis,  4  La.  Ann.  95  ;  Buffi,ngton  v.  Gerrisli,  15 


ATTACHMENT.  425 

Mass.  156  ;  Thompson  v.  Rose^  16  Conn.  71.  See  Pond  v.  -S'A-/(^- 
TYiore^  40  Conn.  213. 

Property  in  the  custody  of  tlie  law  is  exempt  from  attach- 
ment.. Thus,  money  received  by  an  officer,  in  satisfaction  of  an 
execution,  is  in  the  custody  of  the  law,  and  cannot  be  levied  on 
under  an  attachment  against  the  creditor,  so  long  as  it  remains 
in  the  hands  of  the  officer.  Baker  v.  Kentioorthy,  41  N.  Y.  (2 
Hand)  215 ;  Burroughs  v.  Wright,  16  Yt.  619  ;  Burlingame  v. 
Bell.  16  Mass.  318.  So,  money  paid  into  court  {Farmers^  Bank 
V.  Beaston,  7  Gill  &  J.  [Md.]  421)  ;  or  into  the  hands  of  a  clerk 
or  prothonotary  of  a  court  on  a  judgment  {Boss  v.  Clarke,  1 
Dall.  [Penn.]  354 ;  Allston  v.  Clay,  2  Hay  w.  [N.  C]  171 ;  Hunt 
V.  Stevens,  3  Ired.  [N.  C]  365)  ;  being  in  the  custody  of  the  law, 
cannot  be  attached.  lb.  The  same  is  true  of  goods  held  by  a 
collector  of  the  revenue  of  the  United  States,  to  enforce  the  pay- 
ment of  the  duties  thereon.  Harris  v.  Dennie,  3  Pet.  (U.  S.)  292. 
But  property  unlawfully  seized  by  an  officer  and  held  by  him, 
is  not  in  the  custody  of  the  law,  and  may  be  attached  at  the  suit 
of  a  creditor  of  the  owner  of  the  property  so  held.  See  Fair- 
hanks  V.  Bloomfield,  6  Duer  (IST.  Y.),  434,  445  ;  Watson  v.  Todd, 
5  Mass.  271.  Property  held  by  an  officer  under  attachment  from 
a  State  court,  is  not  liable  to  be  seized  under  process  from  a 
United  States  court  {The  Orpheus,  3  Ware,  143)  ;  nor  can  prop- 
erty attached  by  an  officer  of  the  latter  be  taken  out  of  his 
hands  by  an  officer  under  process  issued  by  the  former.  Free- 
man V.  Howe,  24  How.  (U.  S.)  450  ;  Leiois  v.  Buck,  7  Minn.  104 ; 
Moore  v.  WUhenburg,  13  La.  Ann.  22. 

Private  papers  and  books  of  account  are  exempt  from  attach- 
ment. Oi/stead  v.  Shed,  12  Mass.  506  ;  Bradford  v.  Gillaspie, 
8  Dana  (Ky.),  67.  So  is  property  of  a  peculiarly  perishable 
nature.  Wallace  v.  Barker,  8  Vt.  440  ;  Norris  v.  Watson,  2 
Foster  (N.  H.),  364;  Penhallow  v.  Dioight,  7  Mass.  34.  And 
goods  which  cannot  be  returned  in  the  same  plight,  such  as  hides 
in  vats  in  process  of  tanning  {Bond  v.  Ward,  7  Mass.  123) ;  or 
a  burning  pit  of  charcoal,  are  not  liable  to  attachment.  Wild  v. 
Blanchard,  1  Yt.  138.  See  Hale  v.  Huntley,  21  id.  147.  The 
property  liable  to  seizure  upon  attachment  is  generally  specified 
by  statute,  which  prescribes  the  rule  to  be  followed  in  levying 
the  attachment. 

The  attachment,  knowingly,  of  a  mail-coach  and  horses,  while 
carrying  the  mail,  has  been  held  void.  Harmon  v.  Moore,  59 
Me.  428.     But  where  a  steamboat  was  attached,  which  was  ordi- 

YoL.  I.  — 54 


426  ATTACHMENT. 

narily  employed  by  her  owner  in  transporting  the  mail  between 
two  points,  but  at  the  time  of  the  attachment  was  not  so  en- 
gaged, and  had  not  a  mail  on  board,  the  attachment  was  sus- 
tained. Parker  v.  Porter^  6  La.  169.  And  see  Boston,  C.  &  M. 
R.  R.  Co.  V.  Gilmore,  37  N.  H.  410  ;  Briggs  v.  Strange,  17  Mass. 
405 ;  Potter  v.  Hall,  3  Pick.  (Mass.)  368 ;  Bell  v.  Douglass,  1 
Yerg.  (Tenn.)  397.  As  statutes  of  exemption  are  to  be  liberally 
construed,  it  has  been  held  that  a  horse  generally  used  "  for 
team  work"  should  be  exempt  from  attachment,  although  he 
is  not  kept  for  that  purpose  exclusively.  Webster  v.  Orne,  45  Yt- 
40. 

ARTICLE  YIII. 

REMEDIES   FOR   ILLEGA.L   ATTACHMENT   OR   SEIZURE. 

Section  1.  By  action  on  attachment  bond.  In  many  of  the 
States  a  cautionary  or  security  bond  is  required  to  be  executed 
by  the  plaintiff  and  sureties,  to  indemnify  the  defendant  against 
damage  resulting  from  the  attachment.  The  effect  of  the  execu- 
tion of  such  a  bond  is,  to  afford  the  defendant  recourse  against 
the  plaintiff  on  the  bond,  for  a  wrongful  attachment,  where 
there  existed  no  malice  in  suing  it  out.  The  party  whose  prop- 
erty is  attached  may  find  the  proceeding  wrongful  and  vexa- 
tious, and  the  suing  it  out  may  be  ruinous  to  his  credit  and  cir- 
cumstances, though  obtained  without  the  least  malice  toward 
him.  If  the  plaintiff,  under  color  of  the  process,  does,  or  pro- 
cure to  be  done,  what  the  law  has  not  authorized,  and  the  de- 
fendant is  thereby  injured,  it  seems  clear  that  he  is,  in  such 
case,  as  much  as  in  any  other,  entitled  to  redress  from  the  party 
whose  illegal  or  wrongful  act  has  occasioned  the  injury,  although 
it  may  have  been  done  without  malice.  Wilson  v.  Outlaw, 
Minor  (Ala.),  367 ;  8eay  v.  Greenwood,  21  Ala.  491 ;  Dunning 
v.  Humphrey,  24  Wend.  31  ;  Tallant  v.  Burlington  Oas-ligJit 
Co.,  37  Iowa,  261 ;  Williams  v.  Hunter,  3  Hawks  (N.  C.)  545. 
But  it  is  held  that  no  action  lies  for  irregularly  suing  out  an 
attachment.  Id. ;  SJiarpe  v.  Hunter,  16  Ala.  765.  So,  a  mere 
failure  to  prosecute  the  suit  does  not  give  an  action  on  the  bond. 
The  order  must  liave  been  procured  wrongfully  and  without 
just  cause  to  constitute  a  breach  of  the  condition,  although  the 
plaintiff  may  have  abandoned  the  prosecution  of  the  suit.  Pettit 
v.  Mercer,  8  B.  Monr.  (Ky.)  51 ;  Smith  v.  Story,  4  Humph.  (Tenn.) 
169.    But  see  Cox  v.  Robinson,  2  Rob.  (La.)  313. 


ATTACHMENT.  427 

And  an  action  may  be  sustained  on  the  undertaking,  if  the 
prosecution  of  the  attachment  can  be  shown  to  be  wrongful  and 
oppressive,  even  though  the  plaintiff  in  the  attachment  succeeded 
in-that  proceeding.    Harper  v.  Keys,  43  Ind.  220. 

The  bond  is  inquired  simply  for  the  benefit  of  the  party 
against  whom  the  writ  issues,  and  he  only  can  maintain  an  action 
on  the  bond.  RaspilUer  v.  Brownson,  7  La.  231 ;  Davis  v. 
CommonweaWi,  13  Gratt.  (Va.)  139.  But  in  case  of  a  bond 
executed  to  several,  a  joint  action  may  be  maintained,  although 
the  attachment  was  levied,  on  the  separate  property  of  each,  in 
which  they  have  not  a  joint  interest.  Boyd  v.  Martin,  10  Ala. 
700.  See  Alexander  v.  Jacobs,  23  Ohio  St.  359.  No  action  will 
lie,  however,  on  an  attachment  bond  until  the  attachment  shall 
have  been  discharged,  and  such  final  disposition  of  it  must  be 
alleged.  Nolle  v.  Thompson,  3  Mete.  (Ky.)  121 ;  Bittick\.  Wil- 
kins,  7  Heisk.  (Tenn.)  307.  And  it  has  been  held  that,  in  order 
to  maintain  an  action  on  the  bond,  suit  must  first  be  brought  to 
recover  for  the  malicious  act  in  suing  out  the  attachment.  Hol- 
coTTib  V.  Foxworth,  34  Miss.  265  ;  Sledge  v.  Lee,  19  G-a.  411  ; 
Pinney'N.  HersTijield,  1  Mon.  T.  367.  But  the  better  opinion 
would  seem  to  be  that  this  is  not  requisite.  ChurcJiliill  v. 
Abraham,  22  111.  455  ;  Bruce  v.  Coleman,  1  Handy  (Ohio),  516 ; 
Smith  V.  Eakin,  2  Sneed  (Tenn.),  456 ;  Herndon  v.  Forney,  4 
Ala.  243 ;  Dickinson  v.  McGraw,  4  Rand.  (Va.)  158.  Nor  is  it 
necessary,  in  order  to  enable  the  party  injured  to  maintain  a 
suit  on  tlie  bond,  that  he  should  obtain  an  order  of  the  court  in 
which  the  bond  was  filed,  to  deliver  it  to  him  for  suit.  Bruce  v. 
Coleman,  1  Handy  (Ohio),  515 ;  see  Adams  v.  Oliiie,  48  Ala.  551. 

The  plaintifi",  in  an  action  on  an  attachment  bond,  is  entitled 
to  recover  the  actual  damage  he  has  sustained  in  consequence  of 
the  wrongful  issuing  of  the  attachment,  by  being  deprived  of 
his  propert}^,  together  with  the  actual  costs  and  expenses  incurred 
in  defending  the  attachment  proceedings.  See  Donnell  v.  Jones, 
13  Ala.  490;  Johnson  y.  Farmers''  Bank,  4  Bush  (Ky.),  283; 
Munnerlyn  v.  Alexander,  38  Tex.  125  ;  Hay  den  v.  Sample,  10 
Mo.  215;  Dunning  Y.  Humphrey,  24  Wend.  (N.  Y.)  231.  See 
Wilson  V.  Boot,  43  Ind.  486.  But  remote  or  speculative  damages, 
such  as  result  from  injuries  to  credit,  business,  character  or 
feelings,  cannot  be  recovered,  if  the  attachment  was  procured  in 
good  faith.  Pettit  v.  Mercer,  8  B.  Monr.  (K}^)  51 ;  Campbell  v. 
Chamberlain,  10  Iowa,  337;  Floyd  v.  Hamilton,  33  Ala.  235; 
State  V.  Thomas,   19  Mo.  613  ;  Myers  v.  Farrell,  47  Miss.  281  ; 


428  ATTACHMENT. 

Plumh  V.  Woodmansee^  34  Iowa,  116.  In  the  case  last  cited,  it 
was  held  that  the  plaintiff  could  not  recover  for  attorney  fees 
paid  by  him  for  defending  the  attachment  suit.  And  see  Moore 
V.  Stanley,  51  Mo.  317  ;  Hughes  v.  BrooJcs,  36  Tex.  379. 

§  2.  By  action  for  malicious  attachment.  In  the  absence  of 
malice,  an  action  for  the  wrongful  suing  out  of  an  attachment 
can  be  maintained  only  on  the  attachment  bond.  But  if  the 
defendant's  property  be  attached  maliciously,  and  without 
probable  cause,  the  attachment  plaintiff  may  be  subjected  to 
damages  in  an  action  governed  by  the  principles  of  the  common 
law  applicable  to  actions  for  malicious  prosecution.  Lomer  v. 
Gilpin,  6  Dana  (Ky.),  321 ;  Smith  v.  Story,  4  Humph.  (Tenn.) 
169  ;  Ivy  v.  Barnhartt,  10  Mo.  151 ;  McKellar  v.  Couch,  34  Ala. 
336  ;  TallantY.  Burlington  Gas-light  Co.,  37  Iowa,  261  ;  Wood 
V.  Weir,  5  B.  Monr.  (Ky.)  544.  The  malice  necessary  to  be 
shown  in  order  to  maintain  the  action  is  not  necessarily  revenge 
or  other  base  and  malignant  passion.  Whatever  is  done  will- 
fully and  purposely,  if  it  be  at  the  same  time  wrong  and  unlaw- 
ful, and  so  known  to  the  party,  is  in  legal  contemplation  mali- 
cious. See  Wills  v.  Noyes,  12  Pick.  (Mass.)  324 ;  KirJcsey  v. 
Jones,  7  Ala.  622  ;  Foster  v.  Sweeny,  14  Serg.  &  K.  (Penn.)  387 ; 
Kirkham  v.  Coe,  1  Jones'  L.  (N.  C.)  423;  Burkhartv.  Jennings, 
2  W.  Va.  242.  But  the  action  cannot  be  maintained  against  an 
attachment  plaintiff,  on  account  of  an  attachment  maliciously 
obtained  without  his  knowledge,  by  an  attorney  at  law  employed 
by  him  to  collect  a  debt  {Kirksey  v.  Jones,  7  Ala.  622) ;  though 
the  attorney  may  be  held  liable,  and  in  a  case  where  he  and  his 
client  act  in  concert  they  are  both  liable.  Wood  v.  Weir,  5  B. 
Monr.  (Ky.)  544.     See  Ifarshall  v.  Betner,  17  Ala.  832. 

It  constitutes  no  obstacle  to  the  maintenance  of  the  action, 
that  the  attachment  was  obtained  in  a  court  within  a  foreign  juris- 
diction. Wiley  V.  Traiwick,  14  Tex.  662.  Nor  does  the  con- 
sent of  the  defendant  to  a  discontinuance  of  the  attachment  suit 
preclude  him  from  claiming  damages  for  a  wrongful  seizure. 
Spalding  v.  Wallett,  10  La.  Ann.  105.  And  where  property, 
exempted  by  law  from  attachment  and  execution,  had  been 
attached  on  mesne  process,  and  the  debtor  declared  to  a  third 
person  "  that  he  cared  nothing  about  the  property  thus  attached, 
that  the  creditor  might  have  it  and  welcome,  but  he  would  take 
care  that  he  got  no  more,"  it  was  held  that  neither  this  declaration 
nor  evidence  that  the  creditor,  having  heard  of  it,  proceeded  to 
act  upon  it,  and  caused  the  goods  to  be  sold  upon  execution,  could 


ATTACHMENT.  429 

avail  to  defeat  the  action.  Rice  v.  Chase,  9  N.  H.  178.  An 
action  for  a  malicious  attachment  cannot  be  brought,  however, 
until  the  termination  of  the  attachment  suit ;  but  an  omission 
to  aver  its  termination  in  the  declaration  is  cured  by  verdict. 
Feazle  v.  Simpson,  2  111.  (1  Scam.)  80;  JVolle  v.  Thompson,  3 
Mete.  (Ky.)  121 ;  Bea  v.  Lewis,  Minor  (Ala.),  382.  See  Fortman 
V.  Rottier,  8  Ohio  St.  548. 

As  it  regards  damages  in  an  action  for  malicious  attachment, 
the  same  rules  apply  as  in  other  cases  of  malicious  prosecution. 
The  extraordinary  costs,  as  between  attorney  and  client,  as  well 
as  all  other  expenses  necessarily  incurred  in  defense,  are  to  be 
taken  into  the  estimate  of  damages.  See  SandbacJc  v.  TJiomas, 
1  Stark.  306  ;  Tompson  v.  Mussey,  3  Me.  305.  So,  it  has  been 
held  that  fees  paid  an  attorney  for  defending  the  original  suit 
ma}^  be  recovered  as  part  of  the  damages  {Hughes  v.  BrooTcs,  36 
Tex.  379  ;  Marshall  v.  Betner,  17  Ala.  832);  and  for  injuries  to 
his  credit  and  business  the  plaintiff  is  also  entitled  to  recover 
damages.  State  v.  Thomas,  19  Mo.  613  ;  Goldsmith  v.  Picard, 
27  Ala.  142.  But  see  0'  Grady  v.  Julian,  34  id.  88.  See  ante, 
143,  as  to  maliciously  suing  out  an  attachment  and  seizing  goods. 


430  ATTORNEYS. 

CHAPTER  XVIII. 

ATTORNEYS. 

TITLE  T. 

OF   THE   POWERS,  RIGHTS,  DUTIES  AND  LIABILITIES  OF 
ATTORNEYS  IN  GENERAL. 

ARTICLE  I. 

NATURE   OF  THE   OFFICE   AND   QUALIFICATIONS  FOR. 

Section  1.  Nature  of  the  office  generally.  The  word  "attor- 
ney," uncoupled  with  any  qualifying  expression,  will  be  con- 
strued as  meaning  attorney  at  law.  Trowbridge  v.  Weir,  6  La. 
Ann.  706 ;  Ingram  v.  Richardson,  2  id.  839.  And  an  attorney 
at  law  is  defined  to  be  one  who  is  put  in  the  place,  stead,  or 
t?j,rn  of  another,  to  manage  his  matters  of  law.  2  Broom  &  Had. 
Com.  19,  Wait's  ed.  ;  3  Bl.  Com.  25.  He  is  regarded  as  an  offi- 
cer of  the  court  in  which  he  is  admitted  to  practice,  and  is  held 
subject  to  the  control  of  such  court.  Merritt  v.  Lambert,  \Qi 
Paige  (N.  Y.),  352 ;  S.  C,  2  Denio,  607  ;  Denton  v.  Noyes,  2 
Johns.  (N.  Y.)  296.  So,  attorneys,  like  other  officers  of  the 
court,  are,  by  a  legal  fiction,  always  deemed  to  be,  during  term, 
present  in  court.  People  v.  Nemns,  1  Hill  (N.  Y.),  154.  The 
office  is  one  to  be  held  during  good  behavior,  and  the  attorney 
can  only  be  deprived  of  it  for  misconduct  ascertained  and 
declared  by  the  judgment  of  the  court  after  an  opportunity  to 
be  heard  has  been  afforded.  Austin's  &ase,  5  Rawle  (Penn.), 
191  ;  Fletcher  v.  Daingerjield,  20  Cal.  430 ;  Ex  parte  Heyfron, 
7  How.  (Miss.)  127. 

It  has  been  said  that  attorneys  are  to  be  considered  as  public 
officers.  Waters  v.  Whittemore,  22  Barb.  (N.  Y.)  595.  But,  in 
South  Carolina,  it  was  held  in  an  early  case,  that  an  attorney  at 
law  is  not  a  public  officer  (Byrne  v.  Stewart,  3  Desau.  [S.  C] 
466) ;  and  it  was  decided  in  the  Supreme  Court  of  the  United 
States  that  attorneys  and  counselors  in  the  Federal  courts  are 
not  officers  of  the  United  States.     Ex  parte  Garland,  4  Wall. 


ATTORNEYS.  431 

(U.  S.)  333,  378.  And  see  Ingersoll  v.  Howard,  1  Heisk.  (Tenn.) 
247;  Leigh's  Case,  1  Munf.  (Va.)  468;  Ex  parte  Faulkner,  1 
W.  Ya.  269 ;  Ex  parte  Law,  35  Ga.  285  ;  Ex  parte  Yale,  24 
Cal.  241.  Until  recently,  the  two  degrees  of  attorney  and  coun- 
sel were  kept  separate  in  the  Supreme  Court  of  the  United 
States,  and  no  person  was  permitted  to  practice  both  as  attorney 
and  counselor  in  that  court.  See  HalloioelV  s  Case,  3  Dall.  410. 
But  the  same  person  may  now  act  as  both  {Ex  parte  Garland, 
4  Wall.  [U.  S.]  333,  378) ;  as  he  may  in  all  the  other  courts  of 
the  United  States,  as  well  as  in  the  courts  of  the  several  States. 
1  Kent's  Com.  308.  Both  titles  are,  however,  still  retained  in 
common  use. 

The  office  of  attorney,  in  the  professional  sense  of  the  term, 
is  not  known  in  justices'  courts.  They  are  not  courts  of  record, 
and  have  no  such  control  over  those  who  practice  in  them,  as  to 
render  it  safe  to  give  to  such  persons  any  vt^ry  liberal  power,  to 
conclude  the  rights  of  those  whom  they  claim  to  represent. 
Bailey  v.  Delaplaine,  1  Sandf.  (N.  Y.)  11 ;  and  see  Hughes  v. 
Mulvey,  id.  92. 

§  2.  Who  may  be  admitted.  The  question  as  to  who  may  be 
admitted  to  the  office  of  attorney  is  to  be  determined  by  the 
rules  and  regulations  established  on  the  subject  in  the  several 
States.  Every  State  in  the  Union  has  laws  by  which  the  right 
to  practice  in  its  courts  may  be  granted,  and  that  right  is  very 
generally  made  to  depend  upon  the  good  moral  character,  the 
learning,  and  the  professional  skill  of  the  party  on  whom  the 
privilege  is  conferred.  The  right  to  admission  in  no  sense 
depends  on  citizenship  of  the  United  States.  Bradioell  v.  State, 
16  Wall.  (U.  S.)  130.  And  the  citizen  of  one  State  is  not  enti- 
tled, as  matter  of  right,  to  admission  to  the  bar  of  another  State. 
Matter  of  Henry,  40  N.  Y.  (1  Hand)  560.  So,  where  a  woman 
was  refused  a  license  to  practice  law  in  the  courts  of  a  State,  on 
the  ground  that  females  are  not  eligible  under  the  law^s  of  that 
State  {Re  Bradwell,  55  111.  535),  it  was  held  that  such  a  decision 
violated  no  provision  of  the  Federal  Constitution.  Bradwell  v. 
TJie  State,  16  Wall.  (U.  S.)  130. 

Congress  has  power  to  prescribe  the  qualifications  for  the 
office  of  attorney  and  counselor  in  the  Federal  courts  ;  but  it  is 
held  that  this  power  cannot  be  exercised  as  a  means  for  the  in- 
fliction of  punishment  for  the  past  conduct  of  such  officers, 
against  the  inhibition  of  the  Constitution.    Ex  parte  Garland, 


432  ATTORNEYS. 

4  Wall.  (U.  S.)  333,  380.     See  Cummings  v.  State  of  Missouri^ 
id.  277. 

§  3.  Qualifications.  Attorneys  are  officers  of  tlie  court,  admit- 
ted as  such  by  its  order  upon  evidence  of  their  possessing  suffi- 
cient legal  learning  and  fair  private  character.  It  is  the  general 
practice  in  this  country  to  obtain  this  evidence  by  an  examina- 
tion of  the  parties  making  application  for  admission.  And 
where  the  \nw  provides  for  an  examination  of  applicants  for 
admission  to  the  bar,  before  their  admission,  a  candidate  ought 
not  to  be  admitted  v^ithout  attending  in  person  at  the  time  of  the 
hearing,  even  when  physically  disabled  at  the  time  from  coming. 
Ex  parte  SnelUng^  44  Cal.  5i53.  In  regard  to  the  inquiry  as  to 
the  moral  character  of  an  applicant  for  admission,  the  court  is " 
not  limited  to  the  certificate,  but  will  look  behind  it,  and  is 
bound  to  do  so  in  cases  attended  with  suspicious  circumstances. 
Attorneys^  License,'2^  IS .  J.  L.  (1  Zab.)  345. 

The  constitution  of  the  State  of  New  York  gives  to  every 
qualified  applicant  a  title  to  admission,  which  is  held  to  be  a 
substantial  right.  And  an  act  of  the  legislature  of  that  State, 
making  the  diploma  of  a  law  school  of  the  State  conclusive 
evidence  of  the  learning  and  ability  of  its  possessor,  was  held  to 
be  constitutional  and  valid.  Matter  of  Cooper,  22  N.  Y. 
(8  Smith)  67. 

An  attorney  at  law  is  not  bound,  as  a  requisite  of  admission, 
in  Virginia,  to  take  the  oath  prescribed  in  the  act  against  duel- 
ling, the  practice  of  law  not  being  an  office  or  place  under  the 
Commonwealth.  Leigli^ s  Case,  1  Munf.  468;  see  Seymour  v. 
Ellison,  2  Cow.  (N.  Y.)  13.  Matter  of  Wood,  1  Hopk.  (N.  Y.)  6  ; 
flatter  of  Dorsey,  7  Port.  (Ala.)  293.  So,  it  has  been  held  that 
the  act  of  the  legislature  of  Tennessee,  requiring  the  courts  to 
call  before  it  "  all  the  officers  thereof,"  who  shall  swear  that  they 
are  not  guilty  of  any  of  the  offenses  contained  in  the  Ku-Klux 
act,  does  not  apply  to  attorneys.  Ingersoll  v.  Howard,  1  Heisk. 
(Tenn.)  247.  And  one  who  has  received  a  full  pardon  for  all 
offenses  committed  by  his  participation,  direct  or  implied,  in 
the  rebellion,  is  relieved  from  all  penalties  and  disabilities 
attached  to  the  offense  of  treason,  committed  by  such  participa- 
tion. For  that  offense  he  is  beyond  the  reach  of  punishment  of 
any  kind.  He  cannot,  therefore,  be  excluded  by  reason  of  that 
offense,  from  continuing  in  the  enjoj^ment  of  a  previously 
acquired  right  to  appear  as  an  attorney  and  counselor  in  the 
United  States  courts.   Ex  parte  Garland,  4  Wall.  (U.  S.)  333  ;  see 


ATTORNEYS.  433 

Ex  parte  Tenney,  2  Duv.  (Ky.)  351.  In  its  application  to  such  a 
person,  the  "  attorneys'  test  oath,"  prescribed  by  act  of  congress 
of  January  24,  1865,  is  held  to  be  unconstitutional.  Id.;  Exparte 
Law,  35  Ga.  285 ;  and  see  Ex  parte  Quarrier,  2  W.  Va.  569. 
The  "attorneys'  test  oath  act/'  of  West  Virginia,  of  February 
14, 1866,  was  held  to  be  not  unconstitutional.  Ex  parte  Hunter,  2 
W.  Va.  122.  As  to  the  effect  of  that  act  upon  attorneys  who 
had  qualified  as  such  before  its  passage,  see  Ex  parte  Quarrier, 
4  id.  210. 

A  Virginia  license  to  an  attorney  resident  in  the  State  at  the 
time  of  the  separation  has  the  same  effect  in  the  State  of  West 
Vii'ginia  as  if  granted  in  that  State.  Ex  parte  Faulkner,  1  W. 
Va.  269  ;  Ex  parte  Quarrier,  2  id.  569. 

It  is  now  settled  that  the  admission  of  attorneys  by  the  courts 
is  not  the  exercise  of  a  mere  ministerial  power.  In  the  per- 
formance of  the  duty,  the  courts  are  to  be  considered  as  engaged 
in  the  exercise  of  their  appropriate  Judicial  functions.  Matter 
of  Cooper,  22  N.  Y.  (8  Smith)  67;  Str other  v.  Missouri,  1  Mo.  605; 
Ex  parte  Garland,  4  Wall.  (U.  S.)  378 ;  Bradwell  v.  TJie  State, 

1  6  id.  133  ;  Ex  parte  Secomh,  19  How.  (U.  S.)  9;  Commonwealth 
V.  Judges,  etc.,  1  Serg.  &  R.  (Penn.)  187.  The  admission  of  an  attor- 
ney is  not,  therefore,  the  subject  of  a  writ  of  mandamus.  Id. 
But  the  proceeding  may  be  reviewed  on  writ  of  error  or  appeal, 
as  the  case  may  be.  Id. 

§  4.  Suspension.  It  is  within  the  power  of  the  court  to  suspend 
an  attorney  from  practice  for  a  limited  time.    Ex  parte  Burr, 

2  Cranch  (C.  C),  379  ;  Paul  v.  Pur  cell,  1  Browne  (Penn.),  348. 
And  where  an  attorney  commenced  an  action  without  being 
retained  for  that  purpose,  and  failed  in  the  suit,  it  was  ordered 
that  he  should  pay  to  the  defendant  his  costs  in  ten  days  after 
notice  of  a  rule  upon  him,  or  that  he  should  be  suspended  from 
all  practice  as  an  attorney  until  the  costs  should  be  paid. 
Anonymous,  2  Cow.  (N.  Y.)  589.  Where  a  statute  made  pro- 
vision for  the  suspension  of  an  attorney,  guilty  of  certain  speci- 
fied wrongful  acts,  it  was  held  that  this  provision  did  not  restrict 
the  general  power  of  courts  over  their  officers,  and  that  they 
could  suspend  an  attorney  for  other  causes  than  those  mentioned 
in  the  statute.  Matter  of  Mills,  1  Mich.  392.  In  New  Hamp- 
shire an  attorney  may  be  suspended  from  practice  in  the  common 
pleas  by  that  court,  on  good  cause  shown ;  but  ignorance  of 
the  law  is  held  not  good  cause.  Bryant' s  Case,  24  N.  H.  (4 
Fost.)  149. 

Vol.  L  — 55 


434  ATTORNEYS. 

An  attorney's  license  cannot  be  summarily  suspended  by  the 
court,  but  only  upon  an  accusation,  notice,  and  a  day  in  court. 
State  V.  Start,  7  Iowa,  499 ;  see  Withers  v.  State,  36  Ala.  252 ; 
Flsher^s  Case,  6  Leigh  (Va.),  619.  And  the  precise  cause  of 
suspension  must  appear  in  the  order  of  suspension.  State  v. 
WatJcins,  3  Mo.  388.  An  attorney,  in  contempt  of  the  process 
of  the  law,  by  neglecting  to  appear  before  an  examiner  to  tes- 
tify, cannot  be  punished  hj  suspending  him  from  his  profes- 
sional functions.  Comrrionwealth  v.  Newton,  1  Grant's  Cas. 
Penn.)  453. 

§  5.  Striking  off  the  roll.  An  attorney  and  counselor  being, 
by  the  solemn  judicial  act  of  the  court,  clothed  with  his  ofSce, 
does  not  hold  it  as  a  matter  of  grace  and  favor.  The  right 
which  it  confers  upon  him  to  appear  for  suitors,  and  to  argue 
causes,  is  something  more  than  a  mere  indulgence,  revocable  at 
the  pleasure  of  the  court,  or  at  the  command  of  the  legislature. 
It  is  a  right  of  which  he  can  only  be  deprived  by  the  judgment 
of  the  court,  for  moral  or  professional  delinquency.  See  Ex 
parte  Garland,  4  Wall.  (U.  S.)  333.  The  specilic  cases  in  which 
the  court  will  be  justified  in  striking  the  name  of  an  attorney 
from  ihe  roll  will  be  enumerated  in  a  subsequent  section.  See 
jpost,    ,  art.  10. 

ARTICLE  11. 

AUTHORITY   OR   POWERS   OF  ATTORNEYS. 

Section  1.  In  generaL  An  attorney  at  law  has  authority,  by 
virtue  of  his  employment  as  such,  to  do  in  behalf  of  his  client 
all  acts,  in  or  out  of  court,  necessary  or  incidental  to  the  prose- 
cution and  management  of  the  suit,  and  which  affect  the  remedy 
only,  and  not  the  cause  of  action.  Wieland  v.  White,  109  Mass. 
392;  Moulton  Y.  Bowker,  115  id.  36;  S»  C,  15  Am.  Rep.  72; 
Mice  V.  WilMns,  21  Me.  558. 

And  it  may  be  stated  as  a  general  rule,  that  in  the  absence  of 
fraud,  his  acts  are  binding  upon  the  client.  Laioson  v.  Bettison, 
12  Ark.  401 ;  Chambers  v.  Hodges,  23  Tex.  104 ;  Sampson  v. 
Ohleyer,  22  Cal.  200.  And,  unless  an  attorney  be  so  situated  as 
to  excite  the  suspicion  of  the  court,  his  authority  will  not  be 
questioned.  Taliaferro  v.  Porter,  Wright  (Ohio),  611 ;  Smith 
v.  Stewart,  6  Johns.  (N.  Y.)  34 ;  Bogardus  v.  Livingston,  2  Hilt. 
(N.  Y.)  236.  When  one  puts  his  case  against  another  into  the 
hands  of  an  attorney  for  suit,  it  is  a  reasonable  presumption 


ATTORNEYS.  435 

that  the  authority  he  intends  to  confer  upon  the  attorney 
includes  such  action  as  the  latter,  in  his  superior  knowledge  of 
the  law,  may  decide  to  be  legal,  proper  and  necessary  in  the 
prosecution  of  the  demand  {ante^  221);  and,  consequently,  what- 
ever adverse  proceedings  may  be  taken  by  the  attorney  are  to  be 
considered,  so  far  as  they  affect  the  defendant  in  the  suit,  as 
approved  by  the  client  in  advance,  and,  therefore,  as  his  act,  even 
though  they  prove  to  be  unwarranted  by  the  law.  Foster  v. 
Wiley,  27  Mich.  244  ;  S.  C,  15  Am.  Rep.  185.  So,  the  acts  and 
proceedings  of  an  attorney  in  a  suit  may  become  binding  upon 
a  client  by  a  ratification  thereof.  See  Narraguagus  v.  Went- 
loortli,  36  Me.  339 ;  Mason  v.  Steioart,  6  La.  Ann.  709 ;  Williams 
v.  Reed,  3  Mas.  (C.  C.)  405  ;  By  an  v.  Boyle,  31  Iowa,  53. 

§  2.  To  demand  clients'  money,  etc.  An  attorney  may,  by 
virtue  of  his  retainer,  receiver  his  client's  money  in  any  case  in 
which  he  is  employed  ;•  and  the  act  will  be  binding  upon  his 
client,  unless  the  party  paying  it  had  notice  of  a  revocation  of 
the  attorney's  authority  to  act  in  the  case.  Hiller  v.  Ixiy,  37 
Miss.  431 ;  Ruokman  v.  Allwood,  44  111.  183 ;  Ducett  v.  Cun- 
ningham, 39  Me.  386  ;  Megary  v.  Funtis,  5  Sandf.  (N.  Y.)  376. 
But  an  attorney  is  not  authorized  to  receive  any  other  thing  than 
lawful  money  in  payment  of  his  client's  claim,  without  express 
authority  from  his  client  or  principal.  Bailey  v.  Bagley,  19  La. 
Ann.  172  ;  Wright  v.  Daily,  26  Tex.  730  ;  Jeter  v.  Hamland,  24 
Ga.  252 ;  Harper  v.  Harney,  4  W.  Va.  539 ;  Stackhouse  v. 
O'Hara,  14  Penn.  St.  88;  Fly  v.  Harmy,  6  Bush  (Ky.),  620; 
Moye  V.  Cogdell,  69  N.  C.  93.  He  may,  however,  receive  partial 
payments  on  any  claim  put  in  his  hands  for  collection.  Pickett 
v.  Bates,  3  La.  Ann.  627.  And  it  has  been  held  that,  under  his 
general  authority  to  collect,  he  may  accept  payment  partly  in 
cash,  and  partly  in  a  note,  at  a  short  date,  of  a  person  of 
undoubted  responsibility.  Livingston  v.  Radcliff,  6  Barb.  (N. 
Y.)  201.  So,  it  was  held  in  a  Virginia  case,  that  an  attorney 
who  accepted  Confederate  treasury  notes  in  payment  of  a  claim 
placed  in  his  hands  for  collection,  at  a  time  when  such  notes 
constituted  the  only  currency  in  use,  and  were  but  slightly 
depreciated,  was  not  responsible  to  his  client  for  the  ultimate 
loss  on  such  notes,  when  the  latter  did  not  instruct  Jiim  not  to 
accept  payment  in  such  currency.  Pidgeon  v.  Williams,  21 
Gratt.  (Va.)  251. 

An  attorney,  though  authorized,  is  not  bound  to.  receive  monej'- 
collected  for  his  client  on  execution.    Poole  v.  Gist,  4  McCord 


436  ATTORNEYS. 

(S.C),  259.  And  where  tlie  client  receives  the  execution  into  his 
own  hands,  and  pays  the  attorney  his  costs,  the  power  of  the 
attorney  ceases,  and  he  will  no  longer  be  authorized  to  receive 
the  money  due  on  the  execution.  ParJcer  v.  Downing,  13 
Mass.  465. 

An  attorney  cannot  bind  his  client  by  an  agreement  to  set  off 
his  own  debt  in  part  payment  of  a  debt  due  the  client  {Child  v. 
Dwight,  1  Dev.  &  B.  Eq.  [N.  C]  171) ;  nor  has  he  a  right  to 
enter  into  an  agreement,  by  which  land  is  to  be  taken  instead  of 
money,  in  satisfaction  of  his  client's  claim.  Huston  v,  Mltcliell, 
14  Serg.  &  R.  (Penn.)  307.  But  he  has  authority  to  receive 
seizin  for  the  creditor,  on  a  levy  of  an  execution  on  the  debtor's 
land.    Pratt  v.  Putnam,  13  Mass.  363. 

§  3.  To  dispose  of  securities,  etc.  An  attorney  at  law,  who  has 
been  employed  to  collect  a  claim,  has  no  power  to  sell  or  other- 
wise dispose  of  the  claim,  without  express  authority  from  his 
client.  Thus,  he  cannot  transfer  a  note  in  his  hands  for  collec- 
tion {Cliild  V.  Eureka,  etc.,  Works,  44  N.  H.  354  ;  Russell  v. 
Drummond,  6  Ind.  216  ;  Craig  v.  Ely,  5  Stew.  &  P.  [Ala.]  354) ; 
nor  can  he  sell  or  assign  a  judgment  of  his  client  without  express 
authority.  Fassitt  v.  Middleton,  47  Penn.  St.  214  ;  Rowlandv. 
State,  58  id.  196  ;  Maxwell  v.  Owen,  7  Coldw.  (Tenn.)  630.  So, 
an  attorney  into  whose  hands  a  demand  is  put  for  collection,  has 
no  authority  to  surrender  such  demand,  upon  the  undertaking 
of  another  person  ;  and,  especially,  if  the  security  was  not  there- 
by strengthened.     Tankersly  v.  Anderson,  4  Desau.  (S.  C.)  44. 

§  4.  To  make  settlements,  compromises,  etc.  It  is  a  general  rule 
that  an  attorney  cannot,  by  virtue  of  his  general  authority  to 
conduct  a  suit,  bind  his  client  by  bargains  or  contracts  to  com- 
promise the  cause  of  action.  Such  bargain  or  contract  is  void, 
unless  specially  authorized  or  ratified  by  the  client.  Spears  v. 
Ledergerher,  56  Mo.  465  ;  Walden  v.  Bolton,  55  id.  405  ;  Maddux 
V.  Bevan,  39  Md.  485 ;  Adams  v.  Poller,  35  Tex.  711 ;  Moye  v. 
Cogdell,  69  N.  C.  93  ;  Marhourg  v.  Smitli,  11  Kans.  554  ;  Mande- 
mlle  V.  Reynolds,  5  Hun  (N.  Y.),  338.  It  would  seem,  however, 
that  if  the  compromise  be  not  so  unreasonable  as  to  warrant  a 
belief  that  the  attorney  was  imposed  on,  or  that  he  did  not  exer- 
cise his  judgment  fairly,  the  court  will  not  be  inclined  to  disturb 
it.  Holker  v.  Parker,  7  Cranch,  436 ;  Potter  v.  Parsons,  14 
Iowa,  286.  And  a  compromise  acquiesced  in  for  3^ears  by  the 
principal  will  bind  him  forever.  Mayer  v.  Foulkrod,  4  Wash. 
(C.  C.)  511.     So  it  was  held  that  an  attorney  who  is  a  director  in 


ATTORNEYS.  437 

a  railroad  company,  and  is  openly  employed  to  prosecute  a  suit 
agamst  the  road,  may  compromise  the  suit,  and  recover  his  fees 
for  legal  services  in  the  case.     Christie  v.  Sawyer^  44  N.  H.  298. 

An  attorney  has  authority  to  submit  the  cause  to  arbitration 
{Abbe  V.  Bood,  6  McLean,  106  ;  Markley  v.  Amos,  8  Rich.  [S.  C.J 
468  ;  JenTcins  v.  Gillespie,  18  Miss.  31) ;  but  he  has  no  power  to 
change  the  terms  of  submission  entered  into  by  the  parties  them- 
selves, especially  where  it  does  not  appear  that  he  was  employed 
until  after  the  submission,  nor  to  what  extent  his  authority  went. 
Id.  Agreements  relating  to  the  conduct  of  a  suit  and  its  proceed- 
ings during  the  trial,  made  by  attorneys  in  the  case  in  open 
court,  and  entered  upon  the  record,  are  held  to  be  binding  upon 
the  parties.  McCann  v.  McLennan,  3  Neb.  25.  So,  an  agree- 
ment of  attorneys,  in  the  court  below,  to  abide  by  the  opinion  of 
a  professional  gentleman,  whether  restitution  of  the  premises 
should  be  made  to  the  plaintiff  in  error,  from  whom  they  had 
been  taken  by  a  Jiabere  facias^  was  enforced  by  the  supreme 
court.  CaJiill  v.  Benn,  6  Binn.  (Penn.)  99.  But  an  agreement 
between  counsel  without  authority  from  their  client,  that  the  dis- 
missal of  an  action  shall  be  a  bar  to  an  action  for  malicious  pros- 
ecution, is  void  and  ineffectual  to  bind  the  client.  Marbourg  v. 
Smith,  11  Kans.  654. 

Where  the  plaintiffs  in  a  suit  instructed  their  attorney  to  settle 
on  certain  terms,  coupled  with  a  certain  condition,  and  afterward 
spoke  to  the  defendants  of  the  terms  of  settlement,  without  say- 
ing any  thing  about  the  condition,  and  the  attorney  never  men- 
tioned the  condition,  but  settled  upon  the  other  terms  proposed, 
and  the  defendants  believed  that  the  attorney  had  authority  to  set- 
tle as  he  did,  it  was  held  that  the  plaintiffs  were  bound  by  the 
settlement.  Peru  Steel,  etc.,  Co.  v.  Whipple  File,  etc.,  Co.,  109 
Mass.  464. 

The  employment  of  an  attorney  at  law  to  prosecute  a  suit  for 
land  of  which  the  party  alleges  that  he  has  been  disseized,  carries 
with  such  employment  an  authority  to  such  attorney  to  com- 
promise the  claim  against  the  disseizor  for  mesne  profits  during 
the  pendency  of  the  suit,  if  he  deem  such  action  best  for  the 
interest  of  his  client.    Bonny  v.  Morrill,  57  Me.  368. 

§  5.  To  control  proceedings,  etc.,  of  suits.  The  right  of  an 
attorney  of  record  to  manage  and  control  an  action  cannot  be 
questioned  while  he  remains  such,  and  no  stipulation  by  his 
client  as  to  the  conduct  or  disposal  of  the  action  should  be  enter- 
tained by  the  court,  unless  it  is  signed  or  assented  to  by  him. 


438  ATTORNEYS. 

Commissioners  v.  Younger^  29  Cal.  147.  Thus,  the  court  will 
deny  a  motion  to  dismiss  the  action,  founded  on  a  written  con- 
sent of  the  plaintiff  personally,  if  the  attorney  for  the  plaintiff 
refuses  his  consent.  McConnell  v.  Brown^  40  Ind.  384.  So,  a 
stipulation  signed  by  the  party  in  person,  granting  time  to  file  a 
statement,  will  be  disregarded.  Mott  v.  Foster,  45  Cal.  72.  The 
attorney  has  the  exclusive  management  and  control  of  the  case, 
and  his  temporary  absence  from  the  county  does  not  affect  the 
rule.  lb.  And  it  is  held  that  an  attorney  employed  in  anticipa- 
tion of  a  suit  has  as  much  power  to  bind  his  client  before  as 
after  the  suit  has  been  commenced,  and  may  bind  him  by  waiver 
of  service.  Hefferman  v.  Burt,  7  Iowa,  320  ;  1  Wait's  Pr.  241, 
242. 

An  attorney  may,  by  virtue  of  his  general  authority,  release 
from  attachment  the  property  of  the  debtor  attached  in  the  suit. 
Monson  v.  Hawley,  30  Conn.  51.  And  he  may,  in  cases  of 
special  attachment,  do  all  acts  which  the  interests  of  his  clients 
may  require.  Pierce  v.  Strikland,  2  Story,  292.  He  likewise 
has  power  to  use  all  reasonable  and  usual  means  to  secure  his 
client's  claim,  where  the  latter  resides  in  another  State.  He 
may  indemnify  an  officer  for  making  a  levy  directed  by  him  in 
good  faith  and  upon  reasonable  grounds,  and,  if  he  indemnified 
the  officer  by  his  own  bond,  he  may  recover  from  his  client  what 
he  is  obliged  to  pay  thereon.  Clark  v.  Randall,  9  Wis.  135.  So 
he  may,  under  his  general  authority,  waive  a  verification  {Smith 
V.  MulUkin,  2  Minn.  319) ;  verify,  by  affidavit,  a  petition  in 
scire  facias  {Wriglit  v.  Parks,  10  Iowa,  342.  See  1  Wait's 
Pr.  241,  242) ;  permit  a  sheriff  to  renew  an  execution  in  the  name 
of  the  client  {Cheever  v.  Merrick,  2  N.  H.  376) ;  consent  to  an 
order  of  court  referring  the  matters  in  dispute  to  accountants,  to 
report  thereon  to  the  court,  and  such  consent  and  his  consent  to 
a  confirmation  of  the  report,  will  bind  his  client.  Stokely  v. 
Robinson,  34  Penn.  St.  315  ;  Woder  v.  Powell,  31  Ga.  1;  Smith 
V.  Bassard,  2  McCord's  Ch.  (S.  C.)  406.  He  may  also  have  briefs 
printed  at  the  expense  of  his  client  ( Weisse  v.  New  Orleans, 
10  La.  Ann.  46) ;  and  he  may  place  his  client's  name  on  the  writ 
as  indorser.  Minor  v.  Smith,  6  N.  H.  219  ;  but  see  Alspaugh  v. 
Jones,  64  N.  C.  29  ;  Chadwick  v.  Upton,  3  Pick.  (Mass.)  443 ; 
Harmon  v.  Watson,  8  Me.  287.  And  if  the  attorney  of  a  non- 
resident has  in  his  possession  the  note  sued  on,  he  may  swear  to 
the  complaint  on  behalf  of  his  client.  Bates  v.  Pike,  9  Wis. 
224.     So,  an  attorney  retained  to  make  a  motion  to  change  the 


ATTORNEYS.  439 

place  of  trial,  has  authority  to  consent  to  a  reference  of  the 
action.     Tiffany  v.  Lord,  40  How.  (N.  Y.)  481. 

But  an  attorney  cannot,  under  his  general  authority,  consent 
to  the  entry  of  a  judgment  against  his  client,  without  his  assent 
{Peoples.  Lamhorn,  2111.  [1  Scam.]  123;  ^q^ Bobbins  y. Dupree, 
39  Gra.  394 ;  Lyon  v.  Williams,  42  id.  168) ;  nor  can  he  assign  a 
judgment  {Head  v.  Gervais,  Walk.  [Mich.]  431 ;  Rowland  v. 
State,  58  Penn.  St.  196)  ;  nor  enter  a  retraxit  {Lambert  v.  San- 
ford,  2  Blackf.  [Ind]  137) ;  nor  release  a  garnishee  from  his 
attachment  {Quarles  v.  Porter,  12  Mo.  76) ;  nor  release  the  liabil- 
ity of  a  witness  to  pay  a  part  of  the  costs  {Bowne  v.  Hyde,  6 
Barb.  [N.  Y.]  392  ;  Springer  v.  Whipple,  17  Me.  351  ;  Murray 
V.  House,  1 1  Johns.  [N.  Y.]  464) ;  nor  release  an  indorser  of  a 
note,  in  order  to  render  him  competent  to  testify  in  an  action 
against  the  maker  ( York  Bank  v.  Appleion,  17  Me.  55 ;  East 
Riv).  Bank  v.  Kennedy,  9  Bosw.  [ISr.Y.]  573);  nor  can  he  prosecute 
or  defend  a  suit,  to  release  a  claim  of  his  client  on  a  third  person, 
for  the  purpose  of  making  such  person  a  competent  witness  for 
his  client  {Shores  v.  Caswell,  13  Mete.  [Mass.]  413) ;  or  admit 
service  for  his  client  of  an  original  process,  by  which  the  court 
obtains  jurisdiction  for  the  first  time  of  his  person.  To  authorize 
such  admission,  special  authority  must  appear.  Masterson  v. 
Le  Claire,  4  Minn.  163  ;  and  see  Hunt  v.  Brennan,  1  Hun  (N. 
Y.),  213. 

An  attorney  of  record,  in  an  action  in  which  an  erroneous 
judgment  is  rendered  against  his  client,  has  authority,  and  it  is 
his  duty  to  sue  out  a  writ  of  error  to  reverse  it,  without  special 
instructions.  Grosvenor  v.  Danforth,  16  Mass.  74.  So,  an  attor- 
ney of  record  has  authority  to  discontinue  the  suit.  Gaillard 
V.  Smart,  6  Cow.  (N.  Y.)  385  ;  Barrett  v.  Third  Aceiiue  R.  R. 
Co.,  45  N.  Y.  (6  Hand)  628,  635.  And  it  is  held  that  an  affidavit 
to  obtain  an  order  of  seizure  and  sale,  made  by  the  attorney,  in 
the  absence  of  his  principal,  is  sufficient.  Simpson  v.  Lombas, 
14  La.  Ann.  103.  So,  the  authority  of  an  attorney  to  make  affi- 
davit to  hold  to  bail  is  sufficiently  shown  by  the  fact  that  suit 
was  brought  by  him  in  the  name  of  the  plaintiffs,  founded  on 
such  bail  proceeding.     Murphy  v.  Winter,  18  Ga.  690. 

Where  the  solicitor  of  a  party,  at  whose  suit  land  has  been 
attached  and  its  sale  enjoined,  consents  to  a  sale  thereof,  the 
party  purchasing  acquires  a  valid  title.  Rice  v.  O Keefe,  6 
Heisk.  (Tenn.)  638. 


440  ATTORNEYS. 

§  6.  To  make  admissions,  stipulations,  etc.  The  admissions  of 
attorneys  of  record  bind  their  clients  in  all  matters  relating  to 
the  progress  and  trial  of  causes  in  which  they  are  retained,  and 
are  generally  conclusive.  Rogers  v.  Greenwood,  14  Minn.  333  ; 
Smith  V.  Dixon,  3  Mete.  (Ky.)  438.  Thus,  an  attorney  may  bind 
his  client  by  the  admission  of  a  fact  for  the  purposes  of  a  trial 
{Starke  v.  Kenan,  11  Ala.  819  ;  Farmers''  BauTc  v.  Sprigg,  11 
Md.  389) ;  by  a  stipulation  substantially  settling  the  issues  to  be 
tried  {Bingham  v.  Supervisors,  6  Minn.  136) ;  by  making  proper 
agreements  in  regard  to  the  suit  {Farmer s"*  Trust,  etc.,  Bank  v. 
Ketchnm,  4  McLean,  120) ;  by  consenting  to  an  order  of  the  court 
{Hart  V.  Spaidding,  1  Cal.  213) ;  or  by  a  waiver  of  all  informal- 
ities and  irregularities.  Hanson  v.  Hoitt,  14  N.  H.  56.  And  see 
Talbot  V.  3fcGee,  4  T.  B.  Monr.  (Ky.)  377 ;  Pike  v.  Emerson,  5 
N.  H.  293.  But  a  waiver  of  trial  by  jury  in  criminal  cases,  and 
an  agreement  for  trial  by  the  court  is  not  binding  on  the  defend- 
ant if  it  be  made  by  his  attorney  without  consulting  him, 
although  he  was  present  in  court.  Brown  v.  State,  16  Ind.  496. 
So,  although  an  attorney  has  all  the  authority  necessary  under 
his  general  retainer  for  the  conduct  and  management  of  the 
action  and  for  the  collection  of  the  debt,  if  any,  his  powers  to 
act  go  no  further,  even  if  he  thinks  it  for  the  benefit  of  his  client. 
See,  also,  1  Wait's  Pr.  241,  242.  He  cannot,  therefore,  stipulate 
not  to  appeal  or  seek  a  new  trial.  People  v.  Mayor,  etc.,  of  N. 
Y.,  11  Abb.  Pr.  (N.  Y.)  66.  And  agreements  of  counsel  and 
attorneys  in  the  progress  of  cases  will  not  be  enforced  when 
they  are  not  mutual,  or  where  a  substantial  right  of  a  party  has 
been  waived  by  his  counsel  without  his  consent.  Howe  v.  Law- 
rence, 22  N.  J.  L.  (2  Zabr.)  99.  But  to  obtain  relief  against  a  stip- 
ulation on  the  mere  ground  of  oversight  or  mistake  of  the 
attorney,  it  must  have  been  one  which  ordinary  care  and  atten- 
tion would  not  have  guarded  against.  Rogers  v.  Greenwood,  14 
Minn.  333.  See  Bead  v.  French,  28  N.  Y.  (1  Tiff.)  285.  The 
rule  that  stipulations  made  in  open  court  by  the  attorney  of  a 
party,  in  respect  to  a  cause  therein  pending,  are,  when  author- 
ized and  free  from  fraud,  valid  and  binding  (see  McCann  v.  Mc- 
Lennan, 3  Neb.  25) ;  applies  to  stipulations  entered  into  by  the 
attorney  of  a  county,  on  behalf  of  the  county.  Lockwood  v. 
Blackhawk  County,  34  Iowa,  235.  And  such  a  stipulation  can- 
not be  repudiated  by  the  successors  in  employment  of  the  attor- 
ney who  made  the  agreement  while  acting  in  behalf  of  the 
county.  lb. 


ATTORNEYS.  441 

§  7.  To  control  judgment,  execution,  etc.  The  right  of  the 
defendant's  attorney  to  confess  judgment  for  his  client  is  said 
to  be  a  legitimate  incident  of  his  professional  relation  to  the 
cause.  Such  confession,  therefore,  when  made  with  the  knowl- 
edge and  at  the  instance  of  the  client,  is  sufficient  in  law  mth- 
out  any  special  authorization.  Lyon  v.  Williams,  42  Ga.  168 ; 
Dobbins  v.  Dupree,  39  id.  394  ;  and  see  Denton  v.  Noyes,  6 
Johns.  (N.  Y.)  296.  After  the  rendition  of  a  final  judgment,  the 
attorneys  by  whom  the  suit  was  presented  and  defended  have 
no  authority,  resulting  from  their  original  employment,  to  con- 
sent to  set  it  aside,  or  agree  to  a  new  trial.  But  a  special  power 
for  that  purpose  may  be  conferred  upon  them,  and  any  consent 
or  agreement,  given  or  made  by  an  attorney  duly  authorized,  in 
such  case,  will  be  effectually  binding  upon  his  client.  HoTbert 
V.  Montgomery,  5  Dana  (Ky.),  11 ;  see  Clussman  v.  MerJi:el,  3 
Bosw.  (N.  Y.)  402.  And  the  attorney  of  a  judgment  debtor  is 
held  to  have  implied  authority  to  take  out  execution  on  a  judg- 
ment recovered  by  him  for  his  client,  and  to  procure  a  satisfac- 
tion thereof  by  a  levy  on  lands,  or  otherwise,  and  to  receive  the 
money  due  on  the  execution.  Union  Banlc  v.  Geary,  5  Pet. 
(U.  S.)  98  ;  Erwin  v.  Blake,  8  id.  18 ;  see  Hyams  v.  Michel^ 
3  Rich.  (S.  C.)  303.  So,  he  may  direct  the  sheriff  as  to  the 
time  and  manner  of  enforcing  the  execution  (id.;  Willard  v. 
Goodrich,  31  Vt.  597 ;  Gorham  v.  Gale,  7  Cow.  [N.  Y.]  739);  and 
he  may  stay  execution  upon  a  judgment,  in  consideration  of  the 
promise  of  a  third  person  to  pay  the  debt ;  and  such  promise 
is  binding,  although  not  made  to  the  creditor,  nor  expressly 
assented  to  by  him  at  the  time.  Slims  v.  Ely,  3  Watts  &  S. 
(Penn.)  420.  He  may  likewise  discharge  a  defendant  from  arrest, 
on  a  ca.  sa.  issued  by  him  ;  and  the  officer  is  bound  to  receive 
and  obey  his  instructions.  Hopkins  v.  Willard,  14  Vt.  474  ; 
Scott  V.  Seiler,  5  AVatts  (Penn.),  235. 

The  acknowledgment  of  satisfaction,  or  a  discharge  of  a  judg- 
ment by  an  attorney,  binds  his  client.  Wyckoff  v.  Bergen,  1 
N.  J.  L.  (Coxe)  214.  And  the  power  of  an  attorney  extends  to 
opening  a  default  which  he  has  taken  (whether  properly  or 
improperly),  and  vacating  the  judgment  entirely,  even  though 
his  client  has  instructed  him  to  the  contrary.  Read  v.  Frencli, 
28  N.  Y.  (1  Tiff.)  285.  But  see  Quinn  v.  Lloyd,  36  How.  (N.  Y.) 
378 ;  S.  C,  5  Abb.  (N.  S.)  281  ;  7  Rob.  538,  in  which  it  is  held 
that  an  attorney  has  no  authority,  without  the  knowledge  and 
consent  of  his  client,  to  consent  to  vacate  a  judgment  which  is 

Vol.  I.  — 66 


442  ATTORNEYS. 

pending  and  secured  on  appeal.  See  Howe  v.  Lawrence^  2  Zabr. 
■(JS".  J.)  29.  So,  an  attorney  lias  no  authority  to  execute  a  satis- 
faction of  judgment  on  behalf  of  his  client  without  payment 
{Carstens  v.  Barnstorf,  11  Abb.  [N.  Y.]  N.  S.  442  ;  De  Mets  v. 
Dagron,  53  N.  Y.  635) ;  or  by  accepting  less  than  the  full 
amount  of  the  judgment.  Nolan  v.  Jackson,  16  111.  272  ;  Vail 
V.  Jackson,  15  Yt.  314  ;  Wilson  v.  WadleigJi,  36  Me.  496.  And 
even  where  the  attorney  holds  the  judgment  by  assignment,  as 
security  for  debts  due  from  the  client,  his  satisfaction  without 
paj^ment  is  good  only  for  the  amount  of  his  interest.  Beers  v. 
Hendriclison,  45  N.  Y.  (6  Hand)  665. 

An  attorney  who  is  counsel  upon  record  for  the  plaintiif  upon 
2^  judgment,  cannot  release  from  the  lien  of  the  judgment,  the 
real  estate  of  the  defendant,  either  wholly  or  in  part,  without 
the  consent  of  his  client.  Dollar  Savings  Bank  v.  Bohh,  4 
Brewst.  (Penn.)  106 ;  Harrow  v.  Farrow,  7  B.  Monr.  (Ky.)  126. 
Nor  has  he  any  implied  authority  to  release  property  levied  on 
under  execution  {Banks  v.  Evans,  18  Miss.  [10  S.  &  M.J  333) ; 
or  to  discharge  the  defendant  from  execution  on  a  ca.  sa.  with- 
out satisfaction  {Kellogg  y.  Gilbert,  10  Johns.  220  ;  Simonton  v. 
Barrell,  21  Wend.  362) ;  or  to  stay  an  execution  as  to  a  principal 
debtor,  so  as  to  discharge  a  surety  ( Union  Bank  v.  Govan,  18 
Miss.  333) ;  or  to  release  the  sureties  of  his  client's  debtor 
{Givens  v.  Briscoe,  3  J.  J.  Marsh.  [Ky.]  532) ;  or  to  purchase 
real  estate  under  his  client's  execution.  Washington  v.  Johnson, 
7  Humph.  (Tenn.)  468.  But  where  goods,  taken  on  execution  and 
in  the  hands  of  the  sheriff,  are  of  a  perishable  nature  and  liable 
to  be  stolen,  the  attorney  of  the  attaching  creditor  has  autliority 
to  bind  his  client  by  consenting  to  a  sale  of  them,  "  on  the  terms 
that  the  money  should  not  be  paid  over  to  either  party,  but 
retained  by  the  sheriff  and  paid  into  court,  to  abide  the  order 
of  the  court"  {Nelson  v.  Cook,  19  111.  44(») ;  and  it  makes  no 
difference  in  such  a  case,  to  whom  the  property  really  belongs.  Id. 

Whether  one  who  has  been  accustomed  to  take  judgments  for 
a  party  is  authorized  to  act  as  his  attorney  in  a  given  case  —  as 
in  indorsing  a  writ  and  directing  the  sheriff's  levy  —  is  held  to 
be  a  question  of  fact  for  the  jury.  Alspaugh  v.  Jones,  64 
N.  C.  29. 

An  attorney  who  has  obtained  judgment  for  his  client  con- 
tinues to  be  his  agent  in  the  collection  of  the  money  {3f  Donald 
v.  Todd,  1  Grant's  Cas.  [Penn.]  17) ;  and  payment  to  an  attorney 
is  payment  to  his  client.    Ely  v.  Harvey,  9  Bush  (Ky.),  620. 


ATTORNEYS.  443 

§  8.  To  prosecute  auxiliary  proceedings.  An  attorney  is  only 
authorized  to  appear  and  act  for  the  party  in  the  proceedings 
which  constitute  a  part  of  the  action.  He  has  no  more  authority 
to  appear  for  the  party  in  other  proceedings,  not  forming  essen- 
tially a  part  of  the  action,  particularly  when  they  partake  of  a 
criminal  character  and  involve  his  liberty,  than  he  would  have 
authority  to  appear  to  answer  or  plead  guilty  to  an  indictment 
against  his  client.  Plit  v.  Damson^  37  Barb.  97.  See  S.  C,  37 
N.  Y.  (10  Tiff.)  235.  But  it  is  held  that  an  attorney  who  prose- 
cutes a  suit  and  obtains  a  judgment,  may,  without  any  other 
authority  than  his  retainer  in  the  suit,  demand  from  the  debtor 
an  assignment  of  his  choses  in  action,  and  on  refusal  institute  pro- 
ceedings under  the  New  York  non- imprisonment  act.  Steioard  v. 
Biddlecum,  2  N.  Y.  (2  Comst.)  103;  a^ite,  221.  So,  an  attorney 
who  receives  a  note  for  collection  is  authorized,  by  his  general 
retainer,  to  bring  a  second  suit  on  the  note,  after  being  nonsuited 
in  the  first  for  want  of  due  proof  of  the  execution  of  the  note. 
Scott  V.  £J Imendorf,  12  Johns.  315.  And  the  attorney  of  the 
plaintiff  has  power,  under  his  general  authority,  to  give  direc- 
tions as  to  the  time  and  manner  of  enforcing  the  execution. 
Gorham  v.  Gale,  7  Cow.  739.  And  see  Erwin  v.  Blake,  8  Pet. 
(U.  S.)  18.  The  scire  facias  in  foreign  attachment,  though 
technically  a  new  action,  is  not  strictly  such,  but  is  a  further 
proceeding  in  consummation  of  that  commenced  by  the  original 
process ;  and  it  seems  to  have  been  to  a  considerable  extent, 
especially  formerly,  the  understanding  of  the  profession,  that 
counsel  retained  in  the  original  proceedings  were  also  retained 
to  appear  in  the  scire  facias.  Day  v.  Welles,  31  Conn.  344. 
But  counsel  who  undertake  to  defend  a  client  upon  a  criminal 
accusation  do  not  thereby  agree  to  defend  his  bailors  upon  a 
scire  facias  on  the  recognizance.    Headley  v.  Good,  24  Tex.  232. 

An  attorney,  employed  to  defend  a  suit  removed  from  a  jus- 
tice's court  to  the  common  pleas  by  certiorari,  has  no  authority, 
by  virtue  of  his  retainer  for  that  purpose,  to  bi-ing  a  suit  in  the 
name  of  his  client,  against  the  obligors  in  the  bond  given  upon 
obtaining  the  certiorari.  Walradt  v.  Maynard,  3  Barb.  584. 
See  Adams  v.  Fort  Plain  Bank,  36  N.  Y.  (9  Tiff.)  255,  264. 

§  9.  Termination  of  authority.  The  authority  of  an  attorney 
who  is  employed  to  prosecute  or  defend  a  suit,  in  the  absence  of 
special  circumstances,  continues,  by  virtue  of  his  original  re- 
tainer, until  it  is  finally  determined.  The  client  ma.y  terminate 
the  authority  at  his  pleasure,  or  the  attorney  may  do  so  after 


444  ATTORNEYS. 

reasonable  notice  ;  but  in  the  absence  of  proof  to  the  contrary, 
the  presumption  is  that  it  continues  until  the  litigation  has 
ended.  Love  v.  Hall,  3  Yerg.  (Tenn.)  408  ;  Langdon  v.  Castle- 
ton,  30  Vt.  285  ;  Lush  v.  Hastings,  1  Hill  (N.  Y.),  656 ;  Mygatt 
V.  Wilcox,  45  N.  Y.  (6  Hand)  306  ;  S.  C,  6  Am.  Rep.  90  ;  Bath- 
gate V.  Haskin,  59  N.  Y.  (14  Sick.)  533.  The  authority  of  an  attor- 
ney may  be  determined  by  the  death  of  his  client  (1  Wait's  Pr. 
242) ;  and  he  cannot  give  nor  receive  notice  of  motions  in  the 
cause,  until  the  successor,  made  a  party  in  due  form,  has  author- 
ized him  to  act  thereon.  Austin  v.  Monroe,  4  Lans.  (N.  Y.)  67 ; 
Putnam  v.  Van  Buren,  7  How.  (N.  Y.)  31  ;  Judson  v.  Love,  35 
Cal.  463 ;  Gleason  v.  Dodd,  4  Mete.  (Mass.)  333 ;  Risley  v.  Fel- 
lows, 10  111.  (5  Gilm.)  531 ;  Campbell  v.  Kincaid,  3  T.  B.  Monr. 
(Ky.)  566.  See  Succession  of  Liles,  24  La.  Ann.  490  ;  Wilson  v. 
Smith,  22  Gratt.  (Va.)  493. 

That  the  general  authority  of  an  attorney  ceases  with  the  entry 
of  judgment  for  his  client,  ^eQHinkleyY.  St.  Anthony  Falls,  etc., 
Co.,  9  Minn.  55;  Richardson  y.  Talbot,  2  Bibb  (Ky.),  382;  Jack- 
son V.  Bartlett,  8  Johns.  361.  And  it  is  held  that  an  attorney, 
who  tried  a  cause  below,  is  not  authorized  to  appear  in  the  appel- 
late court  without  a  new  retainer.  Covill  v.  Phy,  24  111.  57, 
and  see  Walradt  v.  Maynard,  3  Barb.  584.  But  it  has  been 
held  in  a  number  of  cases  that  the  general  power  of  an  attorney 
continues  until  the  judgment  is  satisfied,  unless  previously 
terminated  by  some  act  of  the  client.  See  Flanders  v.  Sher- 
man, 18  Wis.  575;  Nichols  v.  Dennis,  R.  M.  Charlt.  (Ga.)  188 ; 
Gray  v.  Wass,  1  Me.  257 ;  and  see  Miller  v.  Miller,  37  How. 
(N.  Y.)  1 ;  ante,  441,  §  7. 


ARTICLE  III. 

DUTIES,    LIABILITIES   AND    DISABILITIES  OF   ATTORNEYS. 

Section  1.  In  general.  The  relation  existing  between  attorney 
and  counsel  and  client  is  one  of  trust  and  confidence,  placing 
the  interests  and  rights  of  the  client  very  much  under  the  guard- 
ianship and  control  of  the  counsel,  and  is  liable  to  abuses  result- 
ing in  serious  and  lasting  injury  to  the  client.  The  law  regards 
the  client  as  very  much  under  the  influence  and  control  of  the 
attorney  and  counsel,  while  the  ordinary  professional  relation 
exists  between  them,  and  for  that  reason  the  conduct  and  acts  of 
the  latter  are  closely  watched  and  scrutinized.     See  Goodenough 


ATTOR]S^EYS.  445 

V.  Spencer,  2  N.  Y.  S.  C.  (T.  &  C.)  508;  S.  C,  46  How.  347  ; 
ffatcJi  V.  Fogarty,  33  N.  Y.  Supr.  Ct.  166.  There  is,  however, 
no  implied  agreement  in  the  relation  of  attorney  and  client,  or 
in  the  employment  of  the  former  by  the  latter,  that  the  former 
will  guarantee  the  success  of  his  proceedings  in  a  suit,  or  the 
soundness  of  his  opinions,  or  that  they  will  be  ultimately  sus- 
tained by  a  court  of  last  resort.  Bowman  v.  Tallman,  27  How. 
(N.  Y.)  212;  S.  C.  affirmed,  40  id.  1.  It  is  only  requbed  of  him 
that  he  act  honestly  and  to  the  best  of  his  ability.  Lynch  v. 
Commonwealth,  16  Serg.  &  R.  (Penn.)  368. 

§  2.  Skill  and  fidelity.  When  a  person  adopts  the  profession 
of  the  law,  and  assumes  to  exercise  its  duties  in  behalf  of  another, 
for  hire  and  reward,  he  must  be  held  to  employ  in  his  undertak- 
ing a  reasonable  degree  of  care  and  skill.  1  Wait's  Pr.  242,  243. 
And  if  injury  results  to  the  client,  from  the  want  of  such  a  degree  of 
reasonable  care  and  skill,  the  attorney  must  respond  in  damages, 
to  the  extent  of  the  injury  sustained.  See  Pidgeon  v.  Williams, 
21  Gratt.  (Ya.)  251 ;  Ilarter  v.  Morris,  18  Ohio  St.  492  ;  Watson 
V.  Muirhead,  57  Penn.  St.  161 ;  Walpole  v.  Carlisle,  32  Ind.  415. 
But  it  must  not  be  understood  that  an  attorney  is  liable  for 
every  mistake  that  may  occur  in  practice,  and  held  responsible 
for  the  damages  that  may  result.  If  he  acts  with  a  proper 
degree  of  attention,  with  reasonable  care,  and  to  the  best  of  his 
skill  and  knowledge,  he  will  not  be  held  responsible.  Stevens 
V.  Walker,  55  111.  151 ;  Garribert  v.  Hart,  44  Cal.  542 ;  Bowman 
V.  Tallman,  40  How.  (N.  Y.)  1 ;  1  Wait's  Pr.  242,  243,  He  must, 
of  course,  have  sufficient  learning  to  be  able  to  determine,  with 
reasonable  accuracy,  upon  the  appropriate  remedies  for  enforc- 
ing or  securing  the  rights  of  his  client ;  and  the  degree  of  skill 
required  must  be  sufficient  to  enable  him  to  conduct  the  pro- 
ceedings appropriate  to  such  remedies.  If  he  fails  in  any  of 
these  respects,  he  may,  and  sometimes  does,  not  only  forfeit  all 
claims  for  compensation,  but  also  renders  himself  liable  to  his 
client  for  any  damage  which  he  may  thereby  sustain.  Id. ;  Hatch 
v.  Fogerty,  33  N.  Y.  Supr.  Ct.  166 ;  see  Ex  parte  Gibberson,  4 
Cranch  (C.  C),  503  ;  Weimer  v.  Sloane,  6  McLean,  259.  It  has 
been  held,  however,  that  the  skill  required  has  reference  to  the 
character  of  the  business  which  the  attorney  undertakes  to  do. 
Wilson  V.  Buss,  19  Me.  421 ;  Cox  v.  Sidlimn,  7  Ga.  144;  O'Barr 
V.  Alexander,  37  id.  195. 

§  3.  Attorney  as  bail.    Attorneys  were  not  disqualified  to  be 
bail  by  the  common  law.     But  it  is  a  general  rule  of  the  court 


446  ATTORNEYS. 

of  King's  bench,  adopted  at  an  early  period,  that  no  attorney 
of  that,  or  any  other  court,  shall  be  bail,  in  any  action  depend- 
ing in  that  court.  1  Tidd's  Pr.  230.  The  same  rule  prevails, 
also,  in  the  court  of  common  bench  {Caklsli  v.  Ross^  1  Taunt. 
164) ;  and  it  has  been  adopted,  generally,  in  the  United  States. 
See  3fills  v.  Clarke,  4  Bosw.  (N.  Y.)  632  ;  Coster  v.  Watson,  15 
Johns.  635 ;  Love  v.  SJieffelln,  7  Fla.  40 ;  Massle  v.  Mann,  17 
Iowa,  131  ;  GilhanTc  v.  Stevenson,  30  Wis.  155.  The  rule  is 
said  to  be  founded  upon  reasons  of  convenience,  and  to  relieve 
attorneys  from  importunities  of  their  clients,  and  clients  of 
exorbitant  exactions  of  their  attorney.  And  it  has  been  held 
that  bail  by  an  attorney  cannot  be  treated  as  a  nullity,  but  is 
ground  of  objection  only.  Banter  v.  Levy,  1  Chit.  713 ;  King 
V.  Sheriff  of  Surrey,  2  East,  181.  And  that  an  attorney  is  liable 
on  his  recognizance  when  it  is  entered  into,  notwithstanding  he 
is  prohibited  from  becoming  bail.  Harper  v.  Tahomden,  1  Chit. 
714,  note. 

In  New  York  the  rule  as  to  bail  in  courts  of  law  was  not 
formerly  adopted  in  the  court  of  chancery,  in  respect  to  security 
required  by  statute,  and  it  was  held  that  the  solicitor  might  be 
surety  upon  a  bond  for  costs.  Mickeltliioaite  v.  Rhodes,  4 
Sandf.  Ch.  (N.  Y.)  434.  And  in  a  recent  case  in  that  State,  it 
was  held  that  the  disability  of  attorneys  was  limited  to  bail  for 
the  appearance  of  the  party  arrested.  Ryckman  v.  Coleman,  13 
Abb.  Pr.  398.  So,  under  the  statute  regulating  security  for 
costs,  the  attorney  for  a  non-resident  plaintiff  might  have  become 
surety  for  his  client.  Walker  v.  Holmes,  22  Wend.  614.  Where 
an  attorney,  not  of  record  in  the  action,  but  only  an  attorney  at 
law,  signed  a  bond  as  security  for  costs  for  a  non-resident  plain- 
tiff, it  could  not  be  enforced  against  him  by  the  court  in  a  sum- 
mary manner.  The  obligation  could  be  enforced  in  no  other 
manner  than  if  it  was  the  obligation  of  a  person  not  an  attorney 
or  officer  of  the  court.  Willmont  v.  Meserole,  48  How.  (N.  Y.) 
430;  16  Abb.  (N.  S.)  308.  The  New  York  Rules  of  Court,  No.  8, 
provides  :  "  In  no  case  shall  an  attorney  be  surety  on  any  under- 
taking, or  bond  required  hy  law  in  any  action  or  proceeding, 
or  be  bail  in  any  civil  or  criminal  case  or  proceeding P  In 
Indiana  it  has  been  held  that  an  attorney  may  be  surety  for  his 
client.     Abbott  v.  Zeigler,  9  Ind.  511. 

§  4.  Attorney  as  witness.  It  is  sometimes  indispensable  that 
an  attorney,  to  prevent  injustice,  should  give  evidence  for  his 
client.    It  has,  therefore,  been  held  in  numerous  cas&s,  that  the 


ATTORNEYS.  447 

attorney  in  a  cause  is  not,  because  such,  disqualified  from  being 
a  witness  {Cobbett  v.  Hudson,  22  L.  J.  Q.  B.  11 ;  S.  C,  1  Ell.  & 
B.  11 ;  CTiarUers  and  Robinson  Turnpike  Co.  v.  McNamara,  72 
Penn.  St.  278  ;  S.  C,  13  Am.  Rep.  673 ;  Reed  v.  Colcock,  1  Nott 
&  McCord  [S.  C],  592  ;  Hall  v.  Renfro,  3  Mete.  [Ky.]  51 ;  Rob- 
inson V.  Dauchy,  3  Barb.  [N.  Y.]  20 ;  Potter  v.  Ware,  1  Cush. 
[Mass.]  519) ;  even  though  his  judgment  fee  depends  on  his  suc- 
cess {Newman  v.  Bradley,  1  Ball.  [Penn.]  241),  and  though  he 
expects  a  larger  fee  if  his  client  succeeds.  Boulder  v.  Hebel,  17 
Serg.  &  R.  (Penn.)  32 ;  Miles  v.  0' Hara,  1  id.  32  ;  M^Geliee  v. 
Hansen,  13  Ala.  17;  JSlocum  v.  Newby,  1  Murph.  (N.  C.)  423. 
But  the  practice  of  an  attorney  testifying,  or  making  affidavit 
for  his  client,  is  considered  objectionable  (see  Spencer  v.  Kin- 
nard,  12  Tex.  180  ;  Stratton  v.  Henderson,  26  111.  68),  and  should 
be  discountenanced,  as  far  as  possible,  by  the  courts  and  coun- 
sel. State  V.  Woodside,  9  Ired.  (N.  C.)  496;  Frear  v.  Brinl'er, 
8  Penn.  St.  520. 

In  Little  v.  McKeon,  1  Sandf.  607,  the  court  said  :  "As  to  the 
effect  of  this  practice  upon  the  character  of  the  bar,  we  think 
the  evil  will  work  its  own  cure.  Attorneys,  as  well  as  coun- 
selors, of  standing  and  character  will  never,  except  in  extreme 
cases,  present  themselves  before  a  jury  as  witnesses  in  their  own 
causes  on  litigated  questions,  and  in  such  cases  only  of  some 
unforeseen  necessity.  Those  gentlemen  of  the  bar  who  habitually 
suffer  themselves  to  be  used  as  witnesses  for  their  clients,  soon 
become  marked  both  by  their  associates  and  the  courts,  and 
forfeit  in  character  more  than  will  ever  be  compensated  to  them 
by  success  in  such  clients'  controversies." 

§  5.  Attorney  cannot  act  in  other  capacity.  It  is  held  that  a 
solicitor  in  a  case  cannot  act  as  a  special  master  to  execute  the 
decree.  White  v.  Hoffaker,  27  111.  349.  And,  as  a  general  rule, 
a  receiver  in  an  action  cannot  appoint,  as  his  attorney,  the  attor- 
ney of  either  party.  Branch  v.  Harrington,  49  How.  (N.  Y.) 
196;  Warren  v.  Sprague,  4  Edw.  Ch.  (N.  Y.)  416.  So,  a  person 
deputized  by  a  justice  of  the  peace  to  serve  a  summons  issued 
by  such  justice,  is  to  be  deemed  a  constable  quoad  the  action, 
and  is  prohibited  from  appearing  as  attorney  for  the  plaintiff, 
upon  the  trial.  Knight  v.  Odell,  18  How.  (N.  Y.)  279  ;  Wilkin- 
son V.  Yorce,  41  Barb.  (N.  Y.)  370.  See  Eldredge  v.  McNulty, 
45  How.  440  ;  Ingraham  v.  Leland,  19  Vt.  304.  And  a  person 
who  is  administrator  of  an  estate  cannot  act  as  an  attorney  in 
the  prosecution  of  claims  against  the  same  estate.     Spinks  v. 


448  ATTORNEYS. 

Dams,  32  Miss.  152.  But  one  who  lias  acted  as  attorney  at  law 
of  a  party  in  obtaining  a  judgment,  may  act  as  commissioner  in 
taking  a  deposition  for  liis  client,  to  be  used  in  a  claim  suit 
growing  out  of  the  judgment ;  provided  he  is  not  the  attorney 
in  the  claim  suit,  and  does  not  appear  to  have  any  interest  in 
the  event  of  the  suit.     Taylor  v.  Branch  Bank,  14  Ala.  633. 

§  6.  Cannot  act  ou  opposite  sides.  An  attorney  owes  to  his 
client  fidelity,  secrecy,  diligence  and  skill ;  and  he  cannot,  there- 
fore, serve  professionally,  both  parties  to  a  controvei-sy,  nor  take  a 
reward  from  the  other  side.  1  Wait' s  Pr.  243  ;  Yardly  v.  ElUlly 
Hob.  Sa;  King  v.  Shore,  Cro.  Eliz.  914  ;  Herrick  v.  Catley,  1  Daly 
(N.  Y.),  512 ;  S.  C,  80  How.  208  ;  Sherwood  v.  Saratoga,  etc.,  E. 
R.  Co.,  15  Barb.  (N.  Y.)  650  ;  see  ante,  245  to  249.  So,  an  attor- 
ney is  never  allowed  to  change  sides  in  the  same  cause,  though 
at  different  trials.  Valentine  v.  Stewart,  15  Cal.  387  ;  Gaulden 
V.  State,  11  Ga.  47 ;  Commonwealth  v.  Oibhs,  4  Gray  (Mass.), 
146  ;  Price  v.  Grand  Bapids,  etc.,  M.  R.  Co.,  18  Ind.  137.  But 
where  an  attorney,  in  the  course  of  other  business,  has  obtained 
a  knowledge  of  matters  connected  with  the  suit  in  question,  he 
will  not  generally  be  prevented  from  acting  against  the  party 
through  whose  business  he  obtained  such  knowledge.  Id.  And 
counsel  may  act  as  such  at  the  same  time  for  both  parties  to  a 
transaction,  and  the  fact  that  a  contract  is  drawn  by  and  under 
the  advice  of  one,  who  at  the  time  is  counsel  for  one  of  the  par- 
ties, when  such  fact  is  known  to  the  other  party,  does  not,  in  the 
absence  of  evidence  of  fraud  or  unfairness,  invalidate  or  affect 
the  contract.  Joslin  v.  Cowee,  56  N.  Y.  (11  Sick.)  626  ;  and  see 
Siegel  v.  Gould,  7  Lans.  177 ;  ante,  245  to  249. 

§  7.  Liability  to  third  persons.  One  who  suffers  an  injury  by 
an  unauthorized  appearance  of  an  attorney  for  him,  has  a 
remedy  by  action  against  the  attorney.  Smith  v.  Bowditch,  7 
Pick.  (Mass.)  138  ;  Colt  v.  Sheldon,  1  Tyler  (Vt.),  304  ;  Field  v. 
Gihbs,  Pet.  (C.  0.)  155.  So,  an  attorney  and  his  client  have  been 
both  held  liable,  for  an  execution  illegally  issued  by  the  former. 
Newberry  v.  Lee,  3  Hill  (N.  Y.),  523  ;  see  Armstrong  v.  Dubois, 
1  Abb.  Ct.  App.  (N.  Y.)  8  ;  S.  C,  4  Keyes,  291 ;  Foster  v.  Wiley, 
27  Mich.  244  ;  S.  C,  15  Am.  Rep.  185.  But  an  attorney  may  so  act 
under  his  general  employment,  to  enforce  a  legal  claim,  as  to 
render  himself  alone  liable  for  a  malicious  prosecution  or  arrest. 
Burnap  v.  Marsh,  13  HI.  635 ;  and  see  Hardy  v.  Keeler,  b^  id. 
152.  He  does  not,  however,  incur  any  civil  liability  for  ordering 
a  levy  on  property,  if  he  acts  in  good  faith  and  on  reasonable 


ATTORNEYS.  449 

cause.  Hunt  v.  Printup,  28  Ga.  297 ;  see  Wigg  v.  Slmonton,  12 
Eich.  (S.  C.)  583.  And  he  is  not  cliargeable  with  a  trespass  of 
the  constable  who  has  charge  of  the  execution.  Seaton  v.  Cord- 
ray,  Wright  (Ohio),  102.  Nor  is  he  responsible  for  conveying  to 
an  officer,  his  client's  directions,  for  seizing  goods  on  an  execu 
tion.     Ford  v.  Williams,  13  N.  Y.  (3  Kern.)  577. 

An  attorney  who,  by  his  representations  and  promised  indorse 
*ment,  induces  a  party  to  take  an  assignment  of  a  debt  placed  in 
his  hands  for  collection,  by  way  of  payment  of  a  note  against 
his  client,  thereby  becomes  personally  responsible  to  the  assignee 
for  its  collection.  Hazelrigg  v.  Brenton,  2  Duv.  (Ky.)  525.  And 
where  an  attorney  procures  money  to  be  advanced  by  a  third 
.person,  in  the  prosecution  of  an  action,  without  attempting  to 
pledge  the  credit  of  his  client  therefor,  the  attorney  alone  is 
responsible  to  such  third  person.  Bell  v.  Mason,  10  Vt.  509. 
So,  a  firm  of  attorneys,  conducting  collections  in  various  parts 
of  the  country,  who  give  receipts  "for  collection,"  are  liable  for 
collections  made  by  their  agents,  unless  they  expressly  limit 
their  liability.  Bradstreet  v.  Ever  son,  T2  Penn.  St.  124.  But, 
where  an  attorney,  without  fraud,  collects  money  as  attorney, 
and  pays  it  over  to  his  client,  although  the  one  paying  it  shows 
he  is  entitled  to  have  it  refunded,  an  order  will  not  be  granted 
requiring  the  attorney  personally  to  refund  it.  The  fact  of  pay- 
ment over  should,  however,  be  clearly  shown  in  such  a  case. 
Wllmerdings  v.  Fowler,  m  N.  Y.  (10  Sick.)  641  ;  S.  C,  15  Abb. 
(N.  S.)  86.  As  to  liability  for  words  spoken  on  a  trial,  see 
1  Wait's  Pr.  245. 

§  8.  Liability  for  costs,  fees,  etc.  In  some  cases  an  attorney  is 
held  liable  for  costs.  Thus,  in  South  Carolina,  an  attorney  is 
held  liable  for  sheriffs'  and  clerks'  costs,  where  the  plaintiff  in 
the  suit  lives  out  of  the  State.  Benson  v.  WMtjield,  4  McCord 
(S.  C),  149.  So,  in  Georgia,  an  attorney  instituting  a  suit  for  a 
plaintiff  out  of  the  State,  is  liable,  if  the  suit  is  dismissed  or  the 
plaintiff  cast,  for  all  costs.  Carmichael  v.  Pendleton,  Dudley 
(Ga.),  173.  And,  in  New  York,  an  attorney  is  liable  for  costs  to 
the  amount  of  $100,  when  he  proceeds  in  a  suit  after  his  client 
has  removed  out  of  the  State,  whether  the  costs  accrued  before 
or  after  such  removal.  Wright  v.  Black,  2  Wend.  258  ;  and  see 
Moir  V.  Brown,  9  How.  (N.  Y.)  270  ;  Boyce  v.  Bates,  8  id.  495  ; 
see  3  Wait's  Pr.  538,  549,  550.  So,  where  one  is  made  lessor  in 
ejectment,  without  his  authority,  the  plaintiffs  attorne}^  and  not 
he,  is  liable  for  the  costs.    People  v.  Bradt,  6  Johns.  318. 

Vol.  I.  — 57 


450  ATTORNEYS. 

It  has  been  held,  that  an  attorney  who  indorses  his  client's 
writ,  thus,  "A  B,  by  C  D,  his  attorney,"  is  personally  liable  for 
costs,  if  the  plaintiff  avoid,  or  is  unable  to  pay  them.  CJiap- 
man  v.  Phillips,  8  Pick.  (Mass.)  25;  Hoio  v.  Codman,  4  Me.  79  ; 
but  see  contra,  Hadkness  v.  Farley,  11  id.  491 ;  Minor  v.  Smith, 
6  N.  H.  219.  And  an  agreement  between  an  attorney  and  his 
client,  that  the  former  shall  pay  the  costs  of  an  action  he  has 
brought  for  his  client,  if  unsuccessful,  is  illegal  and  void,  and 
cannot  be  enforced  by  the  client.  Low  v.  Hutchinson,  37  Me. 
196.  Courts  have  power  to  order  costs  to  be  paid  by  counsel,  in 
cases  of  gross  misconduct  or  gross  negligence,  as  a  branch  of 
the  general  power  to  punish  for  contempt.  Brown  v.  Brown,  4 
Ind.  627  ;  Kane  v.  Van  VranTcen,  5  Paige  (N.  Y.),  62  ;  Ex  parte, 
Robhins,  68  N.  C.  309. 

It  is  the  well-settled  general  rule,  that  the  attorney  of  record 
cannot  be  held  liable  for  the  fees  of  the  officers  of  the  court, 
unless  upon  proof  of  his  express  promise  to  pay  them.  See 
Wires  v.  Briggs,  5  Vt.  101 ;  Preston  v.  Preston,  1  Dougl.  (Mich). 
292  ;  Towle  v.  Hatch,  43  N".  H.  270 ;  Rollins  v.  Bridge,  3  Mees. 
&  W.  114;  Morse  v.  Porter,  13  Serg.  &  R.  (Penn.)  100.  But 
the  rule  is  otherwise  in  New  York,  where  an  attorney  has  been 
repeatedly  held  liable  to  the  sheriff  for  fees  on  process  delivered 
to  him  for  execution.  BirTileck  v.  Stafford,  23  How.  (N.  Y.)  236 ; 
S.  C,  14  A-bb.  285 ;  Adams  v.  Hopkins,  5  Johns.  252  ;  Camplell 
V.  Cothran,  56  N.  Y.  (11  Sick.)  279  ;  and  see  Trustees  of  Water- 
town  V.  Cowen,  5  Paige,  510  ;  Judson  v.  Gray,  11  N.  Y.  (1  Kern.) 
408.  So,  an  attorney  is  held  personally  liable  to  the  prothono- 
tary  for  fees  in  suits  wherein  he  was  either  plaintiff  or  plaintiff 
in  interest,  as  also  for  fees  received  by  him,  as  attorney  or  client, 
due  to  the  prothonotary.     Cone  v.  Donaldson,  47  Penn.  St.  363. 

An  attorney  is  not  liable  for  the  fees  of  a  witness  summoned 
to  testify  for  his  client,  unless  upon  a  special  promise  to  pay 
them.    Sergeant  v.  Pettilone,  1  Aik.  (Vt.)  355. 

ARTICLE  IV. 

EIGHTS   AND   PKIVILEGES  OF  ATTOENEYS. 

Section  1.  In  general.  Attorneys  and  counsel,  being  officers 
of  the  court,  are  entitled  to  its  protection  in  all  cases  where  they 
act  to  the  best  of  their  skill  and  knowledge,  and  conduct  them- 
selves with  honor  and  integrity.  Sq,  there  are  various  privileges 
and  exemptions  which  attach  to  attorneys  as  officers  of  the  courts 


ATTORNEYS.  451 

in  whicli  they  are  admitted,  and  there  are  others  which  arise  in 
the  course  of  their  professional  employment,  all  of  which  will 
be  considered  under  appropriate  heads.  As  it  regards  their 
privileges  generally,  it  has  been  said  there  is  nothing  that  coun- 
sel may  not  do  in  the  prosecution  and  defense  of  the  rights  of 
their  clients,  provided  the  manner  of  doing  it  is  courteous  and 
respectful.     WrigJit  v.  State,  13  Ga.  383. 

§  2.  To  compensation.  It  is  the  doctrine  of  the  English  com- 
mon law  that  a  counselor  at  law  cannot  maintain  an  action  for 
his  fees.  2  Broom  &  Had.  28  [Wait's  ed.];  3  Bl.  Com.  28.  This  doc- 
trine was  early  recognized,  to  some  extent,  in  this  country  (see 
Mooney  v.  Lloyd,  5  Serg.  &  R.  [Penn.]  411) ;  and  still  prevails  in 
the  State  of  New  Jersey.  Seeley  v.  Crane,  3  Grreen  (N.  J.),  35  ; 
Shaver  v.  Norris,  Penn.  (N.  J.)  63.  In  New  York,  however, 
counsel  fees  have  always  been  recoverable  on  a  quantum  meruit 
{Stevens  v.  Adams,  23  Wend.  57 ;  S.  C,  26  id.  451) ;  and  gene- 
rally, in  the  United  States,  the  fees  of  an  attorney  or  counselor 
now  constitute  a  legal  demand  for  which  an  action  will  lie.  And 
while,  as  between  party  and  party  in  a  cause,  the  statutory  fee 
bill  fixes  the  amount  of  costs  to  be  recovered,  as  between  attor- 
ney or  counselor  and  client,  the  former  may  recover  whatever 
his  services  are  reasonably  worth,  whether  performed  in  or  out 
of  court.  See  Balshaugh  v.  Frazer,  19  Penn.  St.  95  ;  Yilas  v. 
Doioner,  21  Yt.  419  ;  In  re  Paschal,  10  Wall.  (U.  S.)  483.  See 
1  Wait's  Pr.  245,  246.  In  other  words,  the  compensation  of  the 
attorney  is  left  to  be  governed  by  the  express  or  implied  agree- 
ment between  him  and  his  client.  Stow  v.  Hamlin,  11  How.  (N. 
Y.)  452 ;  Porter  v.  Parmly,  7  Jones  &  Sp.  (N.  Y.)  219.  And 
implied  agreements  between  attorney  and  client  stand  upon  the 
same  footing  with  the  like  agreements  between  other  parties.  lb. ; 
Garfield  v.  Kirk,  65  Barb.  (N.  Y.)  464.  See  Wehh  v.  Browning, 
14  Mo.  353  ;  Smith  v.  Davis,  45  N.  H.  666 ;  Quint  v.  Ophir,  etc.. 
Mining  Co.,  4  Nev.  304;  Cunning  v.  Kemp,  22  Wis.  509  ;  Boy- 
Ian  v.  Holt,  45  Miss.  277.  The  attorney  must  prove  the  services 
rendered  and  their  value.  Opinions  of  attorneys  may  be  re- 
ceived {Brewer  v.  Cook,  11  La.  Ann.  637) ;  and  the  value  of  the 
property  involved  in  the  suit  may  be  taken  into  view.  Garfield 
V.  Kirk,  65  Barb.  (N.  Y.)  464  ;  Harland  v.  Lilienthal,  53  N.  Y. 
(8  Sick.)  438.  So,  the  attorney  may  show  the  amount  and  char- 
acter of  his  professional  business,  as  tending  to  show  his  profes- 
sional standing,  and  to  sustain  the  propriety  of  his  charges. 
Phelps  V.  Hunt,  40  Conn.  97.    An  attorney  who  makes  a  con- 


452  ATTORNEYS. 

tract  with  his  client  for  a  stipulated  amount  as  his  fee  for  attend- 
ing to  a  litigation,  cannot  afterward  recover  on  a  quantum 
meruit^  but  can  only  claim  such  sum  as  he  is  entitled  to  under 
the  contract  with  the  client.  Walker  v.  Bietry,  24  La.  Ann.  349 ; 
Bull  V.  St  Johns,  39  Ga.  78. 

§  3.  Special  agreement  for  pay.  Although  an  attorney  is  per- 
mitted to  enter  into  a. special  agreement  with  his  client  as  to  com- 
pensation, yet  whenever  such  an  agreement  greatly  inures  to 
the  advantage  and  benefit  of  the  attorney,  the  court  will  scru- 
tinize it  with  great  care.  In  such  cases,  all  presumptions  are  in 
favor  of  the  client  and  against  the  propriety  of  the  transaction, 
and  the  burden  of  proof  is  upon  the  attorney  to  show,  by  extrin- 
sic evidence,  that  all  was  fair  and  just,  and  that  his  client  acted 
understandingly  and  with  a  full  knowledge  of  all  the  facts  con- 
nected with  the  transaction,  or  the  subject-matter.  Ford  v.  Har- 
rington, 16  N.  Y.  (2  Smith)  285  ;  Emus  v.  Ellis,  5  Denio,  640 ; 
HaigM  v.  Moore,  5  Jones  &  Sp.  (N.  Y.)  161 ;  Mason  v.  Ring^  3 
Abb.  Ct.  App.  (N.  Y.)  210 ;  McMahan  v.  Smith,  6  Heisk.  (Tenn.) 
167.  But  evidence  on  the  part  of  a  defendant  that  the  plaintiff 
has  agreed  to  give  a  portion  of  the  recovery  to  his  attorney  is 
incompetent.  Such  an  agreement  is  lawful,  and  does  not  dis- 
credit, as  a  witness,  the  party  making  it.  Sussdorff  v.  Schmidt, 
55  N.  Y.  (10  Sick.)  319.  So,  an  agreement  by  an  attorney  to 
commence  and  conduct  and  pay  all  the  expenses  of  a  suit,  and 
give  the  plaintiff  a  certain  share  of  the  proceeds,  has  been  sus- 
tained. Fogerty  v.  Jordan,  2  Robt.  (N.  Y.)  319.  See  Allard  v. 
Lamirande,  29  Wis.  502  ;  Stearns  v.  Felker,  28  id.  594.  As 
has  likewise  an  agreement  that  the  attorney  shall  be  first  paid 
out  of  the  funds  recovered  {Christie  v.  Saioyer,  44  N.  H.  298)  ; 
and  that  the  costs  to  be  recovered  in  the  suit  shall  belong  to  the 
attorney  {Ely  v.  Oooke,  28  N.  Y.  [1  Tifi".]  365) ;  and  that  the 
attorney  shall  have  a  percentage  on  the  amount  recovered  in 
the  suit.  Ryan  v.  Martin,  18  Wis.  672 ;  Benedict  v.  Stuart,  23 
Barb.  (N.  Y.')  420  ;  White  v.  Roberts,  4  Dana  (Ky.),  172  ;  Tapley 
V.  Coffin,  12  Gray  (Mass.),  420.  But  see  Elliott  y.  McClelland, 
17  Ala.  206  ;  Boardman  v.  Thompson,  25  Iowa,  487  ;  Judah  v. 
Trustees,  16  Ind.  56.  So,  a  parol  assignment  of  a  cause  by  a 
plaintiff  to  his  attorney,  in  consideration  of  the  attorney's 
former  services  and  advancements,  has  been  held  valid.  Jordan 
V.  Oillen,  44  N.  H.  424.  But  an  agreement  between  attorney 
and  client,  after  the  former  has  been  employed,  by  which  the 
original  contract  is  varied,  and  greater  compensation  secured  to 


ATTORNEYS.  453 

the  attorney,  has  been  held  void.  Lecatt  v.  Sallee,  3  Port.  (Ala.) 
115.  And  so  of  an  agreement  by  a  solicitor,  to  defend  a  suit 
concerning  land,  in  consideration  of  being  allowed  the  rents  and 
profits  of  the  land,  pending  the  suit.  Merritt  v.  Lambert.  10 
Paige  (N.  Y.),  352.  It  is  not,  however,  against  public  policy  for 
a  party  claiming  title  to  land  to  enter  into  a  contract  with  an 
attorney,  by  which  it  is  agreed  that  the  attorney  shall  commence 
legal  proceedings  for  its  recovery  and  pay  the  costs,  and  in  con- 
sideration of  his  services  and  expenditure  of  money,  have  an 
undivided  one-half  of  all  the  land  recovered,  and  the  undivided 
one-half  of  all  that  may  be  recovered  or  obtained  by  reason 
of  any  compromise  or  settlement  of  the  matter,  and  that  the  party 
claiming  the  land  shall  not  make  any  settlement  or  compromise 
without  the  consent  of  the  attorney.  Such  contract  constitutes 
the  attorney  the  equitable  owner  of  the  undivided  one-half  of 
whatever  shall  result  from  the  prosecution  or  compromise  of  the 
suit  instituted  by  him  to  recover  the  land.     Hoffman  v.  Vallejo^ 

45  Cal.  564. 

It  is  part  of  the  general  duties  of  members  of  the  bar  to  act 
as  counsel  for  persons  accused  of  crime  and  destitute  of  means, 
upon  appointment  by  the  court,  when  not  inconsistent  with  their 
duties  to  others,  and  for  compensation  they  must  trust  to  the 
possible  future  ability  of  the  parties.  Rowe  v.  Yuba  County,  17 
Cal.  61 ;  People  v.  Supermsors  of  Albany,  28  How.  (N.  Y.)  22  ; 
Wright  v.  State,  3  Heisk.  (Tenn.)  256  ;  Elam  v.  Johnson,  48  Ga. 
348.  They  have  no  legal  claim  to  be  paid  for  their  services  in 
such  cases  out  of  the  county  funds.  lb.  But  see  Webb  v.  Baird, 
6  Ind.  13  ;  Samuels  v.  Dubuque,  13  Iowa,  536. 

An  attorney  is  not  entitled  to  recover  for  services,  which, 
through  his  own  neglect,  proved  to  be  of  no  value  to  his  client. 
ISlxon  V.  Phelps,  2^  Vt.  198  ;  Bowman  v.  Tollman,  40  How.  (N. 
Y.)  1.  Nor  is  he  entitled  to  compensation  for  services,  when  he 
detains  money  collected  for  an  unreasonable  time,  or  until  he  is 
sued  for  it.  Bredin  v.  Kingland,  4  Watts  (Penn. ),  420 ;  Wills 
v.  Kane,  2  Grant's  t!as.  (Penn.)  60.  So,  an  attorney  or  counsel 
cannot  recover  for  such  advice  to  a  client  as  would  enable,  if  not 
induce,  him  to  elude  the  process  of  the  law,  nor  for  advice  to  the 
officer  serving  the  process  calculated  to  induce  him  to  violate  his 
duty.  Arrlngton  v.  Siieed,  18  Tex.  135  ;  Goodenough  v.  Spencer, 

46  How.  (N.  Y.)  347 ;  S.  C,  2  N.  Y.  S.  C.  (T.  &  C.)  508. 

§  4.  Lien  for  costs.  As  a  general  rule,  an  attorney  at  law,  who 
is  employed  to  prosecute  a  demand,  has  a  lien  upon  any  judg- 


454  ATTORNEYS. 

ment  or  recovery  obtained  througli  Ms  services,  for  the  fees  or 
compeusation  due  Mm  therefor.  Pindar  v.  Morris,  3  Cai.  (N.  Y.) 
165 ;  Andrews  v.  Morse,  12  Conn.  444 ;  Walker  v.  Sargeant,  14  Vt. 
247 ;  1  Wait's  Pr.  246,  247.  And  this  lien  will  be  protected  by  the 
courts  against  any  unfair  dealings  by  the  client  with  the  right  of 
action,  or  the  judgment.  lb.;  Bradt  v.  Koon,  4  Cow.  416 ;  Garter 
V.  Dams,  8  Fia.  183  ;  Boyer  v.  Clark,  3  Neb.  161 ;  McKenzie  v. 
War  dwell,  61  Me.  136 ;  Howland  v.  Taylor,  6  Hun,  237.  The  lien 
does  not  arise,  however,  until  judgment,  and  before  judgment  the 
parties  may  settle  the  suit  and  give  releases,  without  reference  to 
any  claims  of  attorneys  for  services  previously  rendered.  F^oot 
V.  Tewkshury,  2  Vt.  97 ;  Potter  v.  Mayo,  3  Me.  34 ;  Getchell.  v. 
Clark,  5  Mass.  309  ;  Simmons  v.  Almy,  103  id.  33.  An  attorney 
has  a  liei^  upon  his  client' s  papers  in  his  possession,  obtained  in 
the  course  of  his  professional  employment.  8t.  John  v.  Diefen- 
dorf,  12  Wend.  261 ;  Ez  parte  Russell,  1  How.  (N.  Y.)  149. 
Thus,  he  has  a  lien  upon  a  note  or  order  deposited  with  him  for 
collection  or  suit  {Howard  v.  Osceola,  22  Wis.  453 ;  Stewart  v. 
Flowers,  44  Miss.  513  ;  Dennett  v.  Cutts,  11  N.  H.  163) ;  or  upon 
a  bond  or  mortgage  in  his  hands  for  foreclosure  {Bowling  Green 
Savings  Bank  v.  Todd,  52  N.  Y.  [7  Sick.]  489) ;  but  he  has  no 
lien  upon  papers  of  his  client  which  came  into  Ms  hands  other- 
wise than  in  the  course  of  his  professional  employment.  Henry 
V.  Fowler,  3  Daly  (N.  Y.),  199.  And  one  member  of  a  firm  of 
attorneys  has  no  lien  for  an  individual  demand  upon  papers 
received  by  his  firm.  Bowling  Green  Savings  Bank  v.  Todd, 
64  Barb.  146  ;  S.  C,  62  N.  Y.  (7  Sick.)  489. 

In  some  of  the  States,  as  in  Maine  and  Massachusetts,  an  attor- 
ney has  a  lien  only  by  statute.  See  Potter  v.  Mayo,  3  Me.  34 ; 
Baker  v.  Cook,  11  Mass.  236  ;  see  Wood  v.  Anders,  5  Bush  (Ky.), 
601.  So,  in  many  respects,  the  law  relative  to  the  attorney's  lien 
will  be  found  to  ysny  in  the  difi'erent  States.  In  Illinois,  it  has 
been  held,  that  an  attorney's  lien  for  his  compensation  upon  a 
judgment  which  he  has  recovered,  should  be  limited  to  the 
specific  fees  or  disbursements  taxable  by  law  as  costs,  and  in- 
cluded in  the  judgment.  And  that  it  does  not  extend  to  such 
sum  as  may  be  due  by  contract  with  his  client  as  a  general  com- 
pensation for  services.  Forsyth  v.  Beveridge,  52  111.  268  ;  and 
see  Humjphrey  v.  Browning,  46  111.  476 ;  Wells  v.  Hatch,  43 
N.  H.  246  ;  Mansfield  v.  Borland,  2  Cal.  507.  In  a  more  recent 
case  in  New  York,  it  was  decided  that  an  attorney  has  a  lien 
upon  a  judgment  recovered  by  him  for  any  sum  agreed  upon 


ATTORNEYS.  455 

between  him  and  his  client  as  a  compensation  for  his  services,  as 
well  as  for  the  costs  in  the  judgment,  and,  to  the  amount  of  such 
lien,  he  is  •  to  be  deemed  an  equitable  assignee.  Marshall  v. 
Meech,  51  N.  Y.  (6  Sick.)  140 ;  S.  C,  10  Am.  Rep.  572 ;  see  ^nith 
V.  Youngs  62  111.  210.  So,  when  the  recovery  is  solely  for  costs, 
the  judgment  itself  is  legal  notice  of  the  lien,  and  this  lien  can- 
not be  discharged  by  payment  to  any  one  but  the  attorney. 
Lesher  v.  Boesner,  3  Hun  (N.Y.),  217 ;  S.  C,  5  N.  Y.  S.  C.  (T.  &  C.) 
674.  But  when  the  judgment  is  for  damages  and  costs  it  is  not 
notice  of  the  lien,  even  for  the  taxed  costs,  and  such  lien  can  be 
protected  only  by  notice  to  the  judgment  debtor.  Marshall  v. 
Meech,  51  N.  Y.  (6  Sick.)  140  ;  S.  C,  10  Am.  Rep.  572  ;  see  Pleas- 
ants V.  Kortrecht,  5  Heisk.  (Tenn.)  694 ;  Neil  v.  Staten,  7  id. 
290.  The  retaining  of  an  attorney  to  prosecute  an  action  and 
its  commencement  by  him,  gives  him  no  lien  upon  what  may,  in 
the  event  of  a  trial,  be  recovered  therein.  Pulver  v.  Harris,  52 
N.  Y.  (7  Sick.)  73 ;  see  Casey  v.  March,  30  Tex.  180.  Possession, 
or  the  right  of  possession,  by  a  person  asserting  a  lien,  is  neces- 
sary to  the  existence  of  such  lien.  SI.  John  v.  Diefendorf,  1 2 
Wend.  261 ;  Stewart  v.  Flowers,  44  Miss.  513.  In  Pennsylvania, 
an  attorney  has  no  lien  for  his  professional  compensation  on  the 
papers  of  his  client  in  his  hands,  or  on  money  collected  by  him 
for  his  fees.  Walton  v.  DicTcerson,  7  Penn.  St.  376.  As  to  lien 
for  costs,  see  1  Wait's  Pr.  246,  247. 

§  5.  Privileges  generally.  Attorneys  and  counselors  are  sup- 
posed to  be  always  present,  during  term,  attending  the  court  on 
behalf  of  their  clients.  Walker  v.  Itushhury,  9  Price,  27  ;  Peo- 
ple V.  lievins,  1  Hill  (N.  Y.),  154 ;  and  their  official  duties  in 
court,  therefore,  are  legally  deemed  to  exempt  them  from  being 
called  on  to  fill  many  ordinary  offices.  Thus,  in  Pennsylvania, 
an  attorney  is  privileged  from  serving  as  an  overseer  of  the 
poor,  supervisor  of  the  roads,  constable,  and  in  similar  offices. 
Pespublicav.  Fisher,  1  Yeates  (Penn.),  350.  But  he  is  aot  privil- 
eged from  serving  in  the  militia.  Id. ;  Matter  of  Bliss,  9  Johns. 
(N.  Y.)  347. 

It  is  an  ancient  privilege  of  attorneys  to  be  exempt  from  arrest 
on  mesne  process,  or  being  held  to  bail  (see  EmmeVs  Case,  2 
Cai.  [N.  Y.]  387;  Gibbs  v.  Loomis,  10  Johns.  463;  Common- 
wealth V.  Ronald,  4  Call  [Va.],  97) ;  because  attorneys,  being 
obliged  to  attend  officially  on  the  courts,  are  presumed  to  be 
always  amenable.  lb.  See  Ogden  v.  Hughes,  5  N.  J.  L.  (2 
South.)  718  ;  Sperry  v.  Willard,  1  Wend.  32.     So,  an  attorney 


456  ATTORNEYS. 

has  always  been  regarded  as  privileged  from  arrest,  while  actu- 
ally employed  in  the  conduct  or  management  of  legal  proceed- 
ings, and  this  privilege  continues  while  the  attorney  is  proceed- 
ing from  his  own  private  residence  to  his  office  for  papers,  etc., 
and  from  thence  to  court.  See  1  Wait's  Pr.  597  ;  Secor  v.  Bell^ 
18  Johns.  52 ;  Corey  v.  Russell^  4  Wend.  204 ;  Bohanan  v. 
Peterson.  9  id.  503  ;  Humphrey  v.  Cumming,  5  id.  90  ;  Rlcketts 
v.  Gwney^  1  Chitty,  682.  But  if  an  attorney  ceases  to  prac- 
tice for  a  year,  not  in  consequence  of  any  temporary  absence  or 
avocation,  but  by  betaking  himself  to  a  profession  or  business 
incompatible  with  his  practice  as  an  attorney,  his  privilege  ceases. 
Brooks  V.  Patterson,  Col.  Cas.  133 ;  S.  C,  2  Johns.  Cas.  102. 
See  Colt  V.  Gregory,  3  Cow.  22.  He  cannot,  however,  by  plea, 
waive  or  destroy  liis  privilege,  for  it  is  not  allowed  for  his  own 
sake,  but  for  the  sake  of  the  court  and  the  suitors  in  it.  Scott  v. 
Van  Alstyne,  9  Johns.  216.  Application  must  be  made  to  the 
court.  lb.;  see  Leal  v.  Wigram,  12  id.  88 ;  Cole  v.  McLellan,  4  Hill 
(N.  Y.),  59.  An  attorney  or  counselor  has  a  right,  at  all  reason- 
able times,  to  enter  a  prison  for  the  purpose  of  advising  with  his 
client.  Ex  parte  McGlelan,  1  Wheel.  Cr.  Cas.  (N.  Y.)  303.  As  to 
privileged  communications,  see  post,  art.  9. 

ARTICLE  V. 

ACTIOif  BY  ATTORNEY  AGAINST  CLIENT. 

Section  1.  In  general.  The  right  of  an  attorney  or  counselor 
at  law  to  maintain  an  action  to  recover  compensation  due  him  for 
professional  services,  has  already  been  considered  in  a  preceding 
section.  See  a7de,  art.  4,  §  2.  But  he  cannot  recover  of  hia 
client  for  professional  services,  without  proving  a  retainer  ;  and 
even  proof  of  the  actual  performance  of  the  services  is  not  suffi- 
cient, where  there  is  no  proof  of  a  knowledge  or  a  recognition 
of  the  services  by  the  client.  Burghart  v.  Gardner,  3  Barb.  (N. 
Y.)  64.  And  see  Hotchkiss  v.  LeRoy,  9  Johns.  142 ;  Cooper  v. 
Hamilton,  52  111.  119. 

§  2.  Retainer.  The  law  warrants  a  party  in  giving  faith  and 
confidence,  to  one  who,  by  law,  is  authorized  to  hold  himself  out 
as  a  public  officer,  clothed  with  power  to  represent  others  in  the 
courts.  Hence,  where  an  attorney  appears  in  an  action  for  any 
party,  the  general  rule  is,  that  a  retainer  will  be  presumed,  and 
the  adverse  party,  having  no  notice  or  ground  of  suspicion,  may 
act  on  that  presumption.     Hamilton  v.   Wright,  37  N.  Y.  (10 


ATTORNEYS.  457 

Tiff.)  502 ;  Turner  v.  Caruthers,  17  Cal.  431  ;  People  v.  Mariposa 
Co.,  39  id.  683 ;  Hains  v.  Galbraith,  43  111.  309 ;  Ferguson  v. 
Crawford,  7  Hun,  25.  So,  in  case  of  a  corporation,  as  well  as 
of  an  individual,  appearance  by  an  attorney,  legally  admitted 
to  practice,  is  received  as  evidence  of  his  authority  to  represent 
the  party  in  court.  Oshorn  v.  Bank  of  United  States,  9  Wheat. 
738  ;  Manchester  Bank  v.  Fellows,  28  N.  H.  302 ;  Schrondenheck 
V.  PTicenix  Fire  Ins.  Co.,  15  Wis.  632.  And  it  is  held  that  the 
authority  to  appear  cannot  be  questioned  in  the  court  of  appeal, 
if  not  objected  to  in  the  court  below.  lb, ;  Noble  v.  Bank  of 
Kentucky,  3  A.  K.  Marsh.  (Ky.)  263. 

§  3.  Proof  of  retainer.  Although  the  license  of  an  attorney 
\^  prima  facie  evidence  of  his  authority  to  appear  for  any  per- 
son whom  he  professes  to  represent,  he  may,  nevertheless,  be 
compelled  by  the  court  to  show  his  authority  to  appear  for  such 
party,  at  the  instance  of  either  party  to  the  suit.  West  v.  Hous- 
ton, 3Harr.  (Del.)  15;  Boutlier  Y.JoJmson,  2  Browne  (Penn.),  17 ; 
Commissioners  v.  Purdy,  36  Barb.  (N.  Y.)  266  ;  Clark  v.  Holli- 
day,  9  Mo.  711  ;  1  Wait's  Pr.  563,  564.  In  order  to  invoke  the 
exercise  of  this  power  of  the  court,  the  opposite  party  must  state 
facts  showing  or  tending  to  show  that  the  attorney  does  not 
possess  the  authority  which  he  assumes  {Howard  v.  Smith,  1 
Jones  &  Sp.  [N.  Y.]  124 ;  TJiomas  v.  Steele,  22  Wis.  207 ;  People 
v.  Mariposa  Co.,  39  Cal.  683);  otherwise  the  presumption  aris- 
ing from  his  license  and  appearance  will  prevail.  Id.  ;  see 
M"* Alexander  v.  Wright,  8  T.  B.  Monr.  (Ky.)  194 ;  Hellman  v. 
Mc  W7ie?mie,  3  Rich.  (S.  C.)  364.  The  power  of  an  attorney  of 
record  to  act  in  the  suit  cannot  be  questioned  on  a  collateral 
issue  between  third  persons.  Dlllard  v.  Crocker,  Spears'  Ch. 
(S.  C.)  20 ;  Ferguson  v.  Crawford,  7  Hun,  25.  Nor  can  objection 
to  the  right  of  counsel  to  appear  in  defense  of  an  action  be  made 
after  the  term  at  which  the  appearance  is  first  made.  Knowlton 
V.  Plantation  No.  4,  14  Me.  20. 

A  mere  parol  retainer  is  sufficient  to  authorize  an  attorney  to 
commence  a  suit.  Manchester  Bank  v.  Fellotos,  28  N.  H,  302. 
And  as  between  the  plaintiff  and  the  defendant,  an  attorney  is  a 
competent  witness  to  prove  his  authority  to  appear  in  the  suit. 
Caniff  V.  Myres,  15  Johns.  246 ;  Foley  v.  Smith,  12  N.  J.  L. 
(7  Halst.)  140;  Bridgton  v.  Bennett,  23  Me.  420.  So,  the 
authority  of  the  attorney  to  appear  may  be  inferred  from  cir- 
cumstances, as  that  he  was  the  general  attorney  of  the  defendant, 
and  the  defendant,  though  knowing  of  it,  did  not  object  to  his 

Vol.  I.  —  58 


458  ATTORNEYS. 

appearance.  Bogardus  v.  Limngston,  2  Hilt.  (N.  Y.)  236.  And 
the  admission  that  an  attorney  was  retained  by  the  person  for 
whose  use  an  action  is  brought,  shows  sufficient  authority. 
Cartioell  v.  Menifee,  2  Ark.  358. 

An  attorney,  properly  qualified  and  practicing  as  such,  in  the 
absence  of  a  statutory  provision  or  of  a  rule  of  court  prohibiting 
it,  can  recover  for  services  rendered  upon  the  employment  of.  a 
client,  although  he  may  not  have  been  formally  admitted  to 
practice  in  the  court  where  the  services  were  rendered.  And 
even  if  there  is  a  statute  or  rule  prohibiting  such  a  recovery, 
unless  there  has  been  a  formal  admission,  yet,  if  the  services  are 
rendered  by  a  firm,  one  of  whom  is  duly  admitted,  the  partners 
may  recover  in  a  joint  action  for  such  services.  Harland  v. 
Lilienthal,  53  N.  Y.  (8  Sick.)  438.  An  attorney  who  acts  as 
broker  for  his  client,  in  negotiating  the  sale  or  pledge  of  per- 
sonal property,  is  entitled  to  be  paid  as  such ;  but  he  cannot 
also  charge  a  counsel  fee  for  conversations  with  his  employer, 
in  relation  to  the  same  transaction,  unless  by  express  contract. 
Walker  v.  American  Nat.  Banlc,  49  N.  Y.  (4  Sick.)  659. 

§  4.  Uuauthorized  appearance.  An  unauthorized  attorney  may 
appear  in  an  action  for  a  party,  and  the  party  may  be  bound  by 
the  judgment  pronounced  against  him,  unless  there  appear  to 
be  fraud  or  collusion  in  the  case.  Williams  v.  Butler,  35  111. 
544 ;  Beckley  v.  Newcomb,  24  N.  H.  359 ;  Gager  v.  Babcock,  48 
N.  Y.  (3  Sick.)  154  ;  S.  C,  8  Am.  Rep.  532  ;  Sheriff  v.  Smith,  47 
How.  (N.  Y.)  470  ;  Town  of  Delhi  v.  Ch^aham,  3  Hun,  407  ;  6  N. 
Y.  S.  C.  (T.  &  C.)  49.  The  remedy  of  the  party  is  against  the 
attorney,  for  appearing  and  acting  in  his  name  without  author- 
ity. Blodgett  v.  ConTdin,  9  id.  442.  Though,  in  some  instances, 
where  an  attorney  has  assumed  to  appear  for  a  party  without 
authority,  the  courts,  upon  direct  application,  have  granted 
relief,  such  as  was  consistent  with  the  rights  of  all  parties  in- 
terested (Id. ;  Denton  v.  Noyes,  6  Johns.  206  ;  Ellsworth  v. 
Cainplell,  31  Barb.  134 ;  Abbott  v.  Button,  44  Vt.  546  ;  Camiobell 
V.  Bristol,  19  Wend.  101) ;  as  in  case  of  fraud  or  collusion,  or 
where  the  attorney  is  insolvent.  Id.  So,  it  has  been  held,  that 
although  an  authority  will  be  presumed,  when  an  attorney 
appears  for  a  defendant  not  served  with  process,  yet,  if  the 
defendant  prove  that  he  had  no  authority,  his  rights  cannot  be 
affected  by  the  attorney's  acts.  Hess  v.  Cole,  23  N.  J.  L.  (3  Zabr.) 
116 ;  Handely  v.  Statelor,  6  Litt.  (Ky.)  186.  And,  in  Louisiana, 
the  right  of  a  party  to  repudiate  under  oath,  the  authority  of 


ATTORNEYS.  459 

those  who  apparently  represent  him,  upon  the  records  of  a  court, 
whether  as  plaintiff  or  defendant,  cannot  be  questioned.  Legere 
V.  Richard,  10  La.  Ann.  669  ;  see  BoyMn  v.  Holden,  6  id.  120  ; 
Barnes  v.  Projilet,  5  id.  117.  A  writ  of  error,  sued  out  by  an 
attorney,  without  the  sanction  of  the  plaintiff  named  in  the  writ, 
will  be  dismissed,  on  motion,  at  the  attorney's  cost.  Powell  v. 
Spaulding,  3  Iowa,  443  ;  CricJifield  v.  Porter,  3  Ohio,  518 ;  Bell 
V.  TJrsury,  4  Litt.  (Ky.)  334 ;  Frye  v.  Calhoun  County,  14  111. 
132. 

Proceedings  regularly  had  by  attorneys  who  lawfully  ap- 
peared for  the  respective  parties,  cannot,  in  the  absence  of  fraud, 
be  questioned  by  their  clients  because  of  the  want  of  specific 
authority  to  do  the  acts  done  or  consented  to  by  them.  Palen 
V.  Starr,  7  Hun,  422. 

ARTICLE  VI. 

ACTIONS   AND   PEOCEEDINGS  BY   CLIENT  AGAINST  ATTORNEY. 

Section  1.  In  generaL    See  ante,  444,  art.  3,  §§  1,  2. 

§  2.  For  negligence.  See  a7ite,  4A4:,  art.  3,  §  2.  The  liability 
of  the  attorney  in  this  country  is  not  generally  limited,  as  is  the 
liability  of  counsel  in  England,  to  gross  negligence  or  ignorance. 
See  Gambert  v.  Hart,  44  Gal.  542;  see  1  Wait's  Pr.  242,  243. 
But  the  client  must,  in  some  way,  be  injured  by  his  attorney's 
negligence,  or  he  cannot  maintain  an  action,  even  for  nominal 
damages.  Harter  v,  Morris,  18  Ohio  St.  492 ;  see  Suydam  v. 
Vance,  2  McLean,  99  ;  Grayson  v.  Wilkinson,  13  Miss.  268. 
Whether  given  facts  amount  to  actionable  negligence  is,  in  Cal- 
ifornia, a  question  of  law  for  the  court.  Gambert  v.  Hart,  4A 
Cal.  542.  But,  as  a  general  rule,  it  is  for  the  jury,  under  direc- 
tion of  the  court.  Rhines  v.  Eoans,  66  Penn.  St.  192  ;  Reece  v. 
Rigley,  4  Barn.  &  Ad.  202.  In  Arkansas,  an  attorney  is  liable 
only  for  gross  negligence,  or  gross  ignorance  in  the  performance 
of  his  professional  duties  ;  and  this  is  a  question  of  fact  to  be 
determined  by  the  jury,  and  is  sometimes  to  be  ascertained  by 
the  evidence  of  those  who  are  conversant  with,  and  skilled  in, 
the  same  kind  of  business.  Pennington  v.  Yell,  11  Ark.  212  ; 
see  also  Evans  v.  Watrous,  2  Port.  (Ala.)  205 ;  Hogg  v.  Martin, 
Riley  (S.  C),  156;  but  see  Goodman  v;  Walker,  30  Ala.  (N.  S.) 
482. 

It  has  been  held  to  be  actionable  negligence  for  an  attorney  to 
lay  the  venue  in  the  wrong  coMiiiY  {Kemp  v.  Burt,  4  Barn.  &  Ad. 


460  ATTORNEYS. 

424) ;  to  bring  his  action  in  a  court  which  has  no  jurisdiction 
( Williams  v.  Gibbs,  5  Ad.  &  El.  208) ;  to  prosecute  the  action 
too  soon  {Hopping  v.  Quin^  12  Wend.  517  ;  Long  v.  Or  si,  18  C. 
B.  619 ;  TJiwaites  v.  Mackenzie,  3  Carr.  &  P.  341) ;  or  to  delay 
bringing  an  action  until  it  is  too  late  to  be  available,  and  the 
claim  is  lost.     Smedes  v.  Elmendorf,  3  Johns.  185.    And  see 

Walpole  V.  Carlisle,  32  Ind.  415 ;  Rliines  v.  Eoans,  66  Penn. 
St.  192  ;  Fitch  V.  Scott,  4  Miss.  (3  How.)  314.  So,  if  an  attorney- 
disobeys  the  lawful  instructions  of  his  client,  and  a  loss  ensues, 
he  is  responsible  {Gilbert  v.  Williams,  8  Mass.  51 ;  Armstrong  v. 
Craig,  18  Barb.  387) ;  although  he  may  have  acted  in  good  faith 
and  done  what  he  honestly  supposed  to  be  for  the  interests  of  his 
client.  Cox  v.  Limngston,  2  Watts  &  S.  (Penn.)  103.  And  he 
will  be  held  liable  for  improperly  dismissing  his  client's  suit 
{Evans  v.  Watrous,  2  Port.  [Ala.]  205) ;  but  he  is  not  liable  for 
omitting  to  defend  a  suit,  if  he  be  not  instructed  in  the  defense. 
Boston  V.  Craig,  2  Mo.  198.  We  have  already  seen  in  the  pre- 
ceding article  (2),  that  an  attorney  who  appears  for  another 
without  authority,  is  liable  to  such  person  for  injuries  sustained 
by  this  intrusion.  And  see  O  Hara  v.  BropJiy,  24  How.  (N.  Y.) 
379  ;  Bradt  v.  Walton,  8  Johns.  298. 

An  attorney  has  been  held  liable  for  omitting  to  insert  in  a 
writ  necessary  words,  as  where  he  counts  for  $12,  instead  of 
$1,200,  whereby  his  client  sustains  a  loss.  Varnum  v.  Martin, 
15  Pick.  (Mass.)  440.  So,  although  it  may  not  be  the  strict  pro- 
fessional duty  of  an  attorney  to  prepare  or  supervise  the  prepara- 
tion of  an  affidavit  for  an  attachment  or  a  writ  of  attachment, 
yet  if  he  undertakes  to  do  so,  and  does  it  so  negligently,  or 
unskillf ully,  that  his  client  in  the  progress  of  the  cause  suffers  an 
injury  by  reason  of  such  want  of  care  and  skill,  the  attorney  is 
liable  to  an  action.  Walker  v.  Goodman,  21  Ala.  (N.  S.)  647.  And 
an  attorney  employed  to  record  a  mortgage,  but  who  neglects  to 
do  so  until  after  other  subsequent  incumbrances  have  been 
record(!d,  is  liable  immediately  to  the  mortgagee,  for  all  the  dam- 
ages which  are  likely  to  be  sustained  by  his  default.    Miller  v. 

Wilson,  24  Penn.  St.  114.  See  Arnold  v.  Robertson,  3  Daly  (N. 
Y.),  298.  An  attorney  is  also  liable  to  his  client  for  the  amount 
of  damages  consequent  upon  his  gross  neglect  to  collect  a  claim 
received  by  him  for  collection.  Reilly  v.  Cavanaugh,  29  Ind. 
435  ;  Dearborn  v.  Dearborn,  15  Mass.  316  ;  Oldham  v.  Sparks, 
28  Tex.  425 ;  Eccles  v.  Stevenson,  3  Bibb  (Ky.),  617.  And  the 
law  imputes  to  an  attorney  knowledge  of  defects  in  legal  pro- 


ATTORNEYS.  461 

ceedings  for  tlie  sale  of  property  taken  under  his  direction. 
Galpin  v.  Page,  18  Wall.  (U.  S.)  350. 

§  3.  For  accounting  and  payment.  It  is  the  general  rule  that 
an'  attorney  is  not  liable  to  an  action  by  his  client  for  money  col- 
lected until  after  demand  made,  or  a  direction  to  remit.  Rath- 
bun  V.  Ingals,  1  Wend.  320 ;  People  v.  Brotherson,  36  Barb. 
(N.  Y.)  662;  Pierse  v.  Thornton,  44  Ind.  235;  Cummins  v. 
MLain,  2  Ark.  402  ;  Mardis  v.  ShacJcleford,  4  Ala.  493 ;  Voss 
V.  BacJiop,  5  Kans.  59.  In  other  words,  he  is  not  considered 
in  default  until  he  receives  orders  from  his  principal.  See 
Krause  Y.  Dorrance,  10  Penn.  St.  462;  ante,  252  to  254. 
But  although  the  general  rule  be  as  thus  stated,  circum- 
stances may  exist  which  will  dispense  with  the  necessity  of  a 
demand ;  as,  when  the  attorney  has  been  guilty  of  fraud  or  mal- 
practice, or  of  culpable  negligence  in  not  giving  notice  of  the 
receipt  of  the  money  in  a  reasonable  time  {Glenn  v.  Cuttle,  2 
Grant's  Cas.  [Penn.]  273  ;  Benton  v.  Embury,  10  Ark.  228 ;  ante, 
252) ;  or  when  he  puts  in  a  sham  plea  for  delay,  or  exhibits  a 
manifest  desire  to  baffle  the  plaintiff,  or  to  withhold  from  him  his 
just  demand.  Krause  v.  Dorrance,  10  Penn.  St.  462.  See  Cum- 
mins V.  IP  Lain,  2  Ark.  402.  So,  an  engagement  by  an  attorney 
to  pay  over  money,  tvhen  collected,  to  a  third  party,  and  a  fail- 
ure to  do  so,  dispenses  with  demand.  Mardis  v.  ShacJcleford,  4 
Ala.  493.  If  he  has  any  doubt  whether  the  debts  collected  belong 
to  his  client,  all  that  he  has  any  right  to  ask,  is  indemnity  on 
paying  over  the  money.  Marmn  v.  Ellwood,  11  Paige,  365 ; 
8i7ns  V.  Brown,  6  N.  Y.  S.  C.  (T.  &  C.)  5. 

An  action  for  money  had  and  received  will  lie  against  an  attor- 
ney, who,  having  a  debt  to  collect,  receives  in  payment  debts  on 
himself  or  on  others,  without  authority  from  his  principal. 
Houx  V.  Eussell,  10  Mo.  246.  And  if  an  attorney  collects  money 
for  his  client,  and  uses  the  money  as  his  own,  he  may  be  held 
liable  for  interest  thereon  during  such  use.  Mansfield  v.  Wilker- 
son,  26  Iowa,  482.  See  Walpole  v.  BisJiop,  31  Ind.  156 ; 
Hover  v.  Heath,  3  Hun,  283 ;  5  N.  Y.  S.  C.  (T.  &  C.)  488.  So, 
if  he  receives  property  from  a  defendant,  in  satisfaction  of  a 
client's  judgment,  and  disposes  of  it  without  rendering  an 
account,  he  may  be  charged  the  amount  he  received  for  it  as 
money.  Christy  v.  Douglas,  Wright  (Ohio),  485.  And  it  is 
held  that  an  attorney,  like  any  other  agent,  is  liable  in  trover  for 
the  conversion  of  the  money  of  his  principal.  Cotton  v.  Sharp- 
stein,  14  Wis.  226.    A  collecting  agency,  receiving  and  remitting 


462  ATTORNEYS. 

a  claim  to  tlieir  own  attorney,  who  collects  tlie  money  and  fails 
to  pay  it  over,  is  liable  for  his  neglect.  Bradstreet  v.  Eversoriy 
72  Penn.  St.  124  ;  ante,  266. 

§  4.  Summary  proceedings  to  collect,  etc.  Resort  may  be  also 
had  to  the  remedy  by  summary  proceedings,  to  compel  the  pay- 
ment of  moneys  collected  by  an  attorney.  See  Bowling  Green 
Savings  Bank  v.  Todd,  52  N.  Y.  (7  Sick.)  489.  And  in  order  to 
give  the  right  to  proceed  summarily  against  him,  it  is  not  essen- 
tial that  the  attorney  should  have  received  the  money  in  any 
suit  or  legal  proceeding,  or  that  he  should  have  been  employed 
to  commence  legal  proceedings.  It  is  enough  if  the  money  was 
received  in  his  professional  character  ;  as,  where  the  demand  on 
which  he  received  it  was  left  with  him  under  instructions  to  call 
for  payment,  or  obtain  better  security,  but  without  any  direc- 
tions to  sue.  Matter  of  DaMn,  4  Hill,  42;  and  see  ^57^  ^ar^e 
Staats,  4  Cow.  76 ;  Matter  of  AitMn,  4  Barn.  &  Aid.  47 ;  Wil- 
merdings  v.  Fowler,  55  N.  Y.  (10  Sick.)  641 ;  14  Abb.  (N.  S.) 
249 ;  15  id.  86.  It  is  held,  however,  that  a  summary  applica- 
tion to  compel  an  attorney  to  pay  over  money  received  in  his 
professional  capacity,  is  only  entertained  on  motion  of  the  client. 
It  is  a  privilege  given  to  clients  for  their  protection  against 
exactions  and  overreachings,  and  is  not  ex^nded  either  to  out- 
side parties,  or  to  assignees  of  clients.  Hess  v.  Josepli,  7  Rob. 
(N.  Y.)  609.  The  remedy  is  regulated,  to  a  great  extent,  by  local 
practice. 

§  5.  Other  relief.  A  default  for  not  pleading  will  be  opened, 
where  it  is  suffered  by  the  neglect  of  an  attorney,  who  is  insol- 
vent. Meacliam  v.  Dudley,  6  Wend.  514.  So,  where  the  delay 
or  irregularity  in  the  cause  has  proceeded  from  the  gross  negli- 
gence or  ignorance  of  the  attorney,  the  court  wiU,  in  its  discre- 
tion, relieve  the  client  against  the  consequences  of  the  delay  or 
irregularity.    Pratt  v.  Adams,  7  Paige,  615. 

A  right  of  action  to  recover  back  money  paid  to  an  attorney, 
in  advance,  for  services  to  be  rendered  at  a  future  day,  accrues 
from  the  time  when  he  neglects  or  refuses  to  render  the  service. 
Benton  v.  Qraig,  2  Mo.  198. 

ARTICLE  VII. 

CHANGE,   ETC.,    OF   ATTGRlsrEYS. 

Section  1.  In  general,  by  client.  A  party  to  a  suit  has  the 
right  to  discharge  his  attorney  when  he  pleases,  and  the  attor- 


ATTORNEYS.  463 

ney  thus  discharged  has  no  right  to  charge  for  his  services  after- 
ward. Wells  V.  Hatch,  43  N.  H.  246  ;  Carmr  v.  United  States, 
7  Ct.  of  CI.  499  ;  In  re  Paschal,  10  Wall.  483  ;  Arrlngton  v. 
Sneed,  18  Tex.  135.  Bat  a  party  cannot  insist,  as  a  matter  of 
right,  upon  a  substitution  of  one  attorney  for  another,  without 
the  payment  of  the  costs  earned.  Board  of  Supervisors  v.  Brod- 
head,  44  How.  (N.  Y.)  411.  And,  upon  the  application  for  an 
order  of  substitution,  the  court  will  see  to  it,  that  any  rights  of 
the  attorney,  as  to  compensation  for  past  services,  etc.,  are 
properly  protected.  Id.  Howard  v.  Taylor,  6  Hun,  237 ;  Hoff- 
man V.  Van  Nostrand,  14  Abb.  (N.  Y.)  336 ;  Walton  v.  Sugg, 
Phill.  L.  (N.  C.)  98  ;  Sloo  v.  Laio,  4  Blatchf.  268  ;  and  see 
Gardner  v.  Taylor,  5  Abb.  N.  S.  (N.  Y.)  33  ;  S.  C,  36  How.  63  ; 
1  Wait's  Pr.  248.  If  the  attorney  of  one  of  the  parties  dies,  or 
becomes  incapable  of  conducting  the  suit,  the  opposite  party 
should  give  the  other  notice  to  appoint  a  new  attorney,  before 
taking  any  new  proceedings.  Given  v.  Driggs,  3  Cai.  (N.  Y.)  150. 

§  2.  Withdrawiug,  by  attorney.  An  attorney  may  be  changed 
on  his  own  consent,  but  the  consent  must  be  filed  on  an  order 
entered,  substituting  in  his  place  the  new  attorney,  and  notice  of 
the  order  must  be  served  upon  the  opposite  party.  Ryland  v. 
Noalces,  1  Taunt.  342 ;  Dorlon  v.  Lewis,  7  How.  (N.  Y.)  132. 
But  in  no  case  can  an  attorney  be  changed  without  leave  of  the 
court,  or  upon  an  order  of  a  judge  of  the  court.  Anonymous,  7 
Mod.  50  ;  Mumford  v.  Murray,  Hopk.  369  ;  Krekeler  v.  Thaule, 
49  How.  (N.  Y.)  138  ;  1  Wait's  Pr.  248.  And  until  so  changed 
(upon  notice  of  the  change  or  withdrawal,  given  to  the  opposite 
attorney),  he  will  be  held  responsible,  and  service  u  >on  him  will 
be  deemed  good.  United  States  v.  Curry,  6  How.  (U.  S.)*  106  ; 
Boyd  V.  Stone,  5  Wis.  240. 

§  3.  Assistants  or  substitutes.  An  attorney  employed  to  prose- 
cute or  defend  an  action  has  no  implied  authority  to  employ  a 
substitute  to  act  in  his  place.  The  relation  being  one  of  per- 
sonal trust  and  confidence,  the  attorney  cannot  delegate  his 
duties,  without  the  consent  of  his  client.  Matter  v.  Bleakly,  5 
Paige,  311  ;  Hitchcock  v.  M'Gehee,  7  Port.  (Ala.)  556  But,  if 
the  client  knew  of  the  substitution,  and  either  accepts  the  ser- 
vices of  the  substitute,  or  does  not  object,  he  is  bound  by  the 
substitution,  and  must  pay  whatever  he  has  agreed  to  pay  the 
principal  attorney.  Smith  v.  Lipsa^mh,  13  Tex.  532  ;  and  see 
King  V.  Pope,  28  Ala.  601 ;  Johnson  v.  Cunningham,  1  id.  249  ; 
Fenno  v.  English,  22  Ark.  170.    So,  an  attorney  employed  to 


464  .  ATTORNEYS. 

manage  a  suit  may,  in  the  absence  of  his  employer,  engage 
assistant  counsel,  and  such  counsel  may  charge  his  fees  to  the 
attorney  or  his  client.  Briggs  v.  Georgia,  10  Vt.  68.  Though 
it  is  otherwise,  if  the  party,  or  his  authorized  agent,  is  present 
at  the  trial.  Id.  And,  as  a  general  rule,  the  attorney  in  a  case 
has  no  power,  as  such,  to  employ  assistant  counsel  at  the 
expense  of  his  client ;  and  such  employment  will  not  bind  his 
client,  unless  it  can  be  fairly  inferred,  from  the  facts  in  the  case, 
that  such  authority  was  given  to  him  by  the  client.  Coolc  v. 
Bitter,  4  E.  D.  Smith  (N.  Y.),  253  ;  Scott  v.  Hoxsie,  13  Vt.  50  ; 
Paddock  v.  Colby,  18  id.  485.  Where  an  attorney  receives  a 
demand  for  collection,  and,  without  the  client's  knowledge, 
delivers  it  to  another  attorney,  who  collects  and  fails  to  pay  it 
over,  the  first  attorney  is  liable  for  the  money.  Pollard  v.  Row- 
land, 2  Blackf.  (Ind.)  22 ;  Bradstreet  v.  Emrson,  72  Penn.  St. 
124 ;  Kellogg  v.  Norris,  10  Ark.  18  ;  see  Lewis  v.  PecTc,  10  Ala. 
142  ;  Herron  v.  Bullitt,  3  Sneed  (Tenn.),  497 ;  Cummins  v. 
HP  Lain,  2  Ark.  402. 

An  attorney  at  law,  who  has  been  elected  a  judge,  cannot  sub- 
stitute another  to  perform  his  subsisting  professional  contracts ; 
for,  what  a  person  is  legally  incapacitated  to  do  himself,  he  can- 
not do  by  another.    Ratcliff  v.  Baird,  14  Tex.  43. 

§  4.  Partners  of  attorney.  The  law  recognizes  professional  asso- 
ciations between  attorneys  for  the  prosecution  of  their  particular 
business,  as  lawful,  and  admits  of  no  distinction  between  them 
and  other  partnerships,  at  least  so  far  as  relative  rights  and  lia- 
bilities are  involved.  As  in  other  partnerships,  each  member  is 
entitled  to  any  benefit  accruing  from  the  conduct  of  the  others, 
and  all  are  liable  for  the  acts  and  receipts  of  each  within  the 
scope  of  the  partnership  business.  Livingston  v.  Cox,  6  Penn. 
St.  360.  Thus,  although  but  one  of  them  appears  in  and  con- 
ducts a  suit  in  court,  all  are  entitled  to  the  fees  earned,  and  an 
action  may  be  maintained  in  their  joint  names.  Warner  v.  Oris- 
wold,  8  Wend.  665.  So,  the  service  of  papers  upon  the  partner 
not  appearing  is  service  upon  all.  Lansing  v.  McKillup,  7 
Cow.  410.  And  attorneys  practicing  in  partnership  are  equally 
responsible  for  money  collected  and  not  paid  over,  though  one 
of  them  had  no  participation  in  that  particular  transaction. 
Dwiglit  V.  Simon,  4  La.  Ann.  490 ;  M^  Farland  v.  Crary,  8  Cow. 
253.  So,  if  a  suit  be  unskillfully  or  negligently  conducted  by 
one  of  the  partners,  they  are  all  responsible  to  the  client  in  an 
action  for  damages.     Warner  v.  Oriswold,  8  Wend.  665  ;  Lit- 


ATTORNEYS.  465 

ingston  v.  Qox^  6  Penn.  St.  360.  If  a  firm  be  employed,  the  client 
has  a  right  to  the  services  of  all  of  its  members.  Cholmondeley 
V.  Clinton,  19  Ves.  261.  And  if  one  of  them  die,  the  engage- 
ment is  at  an  end,  unless  by  its  terms  it  is  still  to  subsist,  and 
the  business  is  to  be  attended  to  by  the  survivors.  For  the 
services  rendered  during  the  continuance  of  the  engagement,  the 
firm  is  entitled  to  compensation ;  but  by  the  death  of  one  of  the 
persons  employed,  the  engagement  is  determined  if  its  comple- 
tion requires  any  exercise  of  professional  skill.  McGill  v.  Mc- 
Gill,  2  Mete.  (Ky.)  258.  Attorneys  who  are  partners  are  not, 
however,  released  from  the  obligations  they  have  assumed,  so 
far  as  their  clients  are  concerned,  by  a  dissolution  of  their  firm, 
or  by  any  other  act  or  agreement  between  themselves.  Walker 
V.  Goodrich,  16  111.  341  ;  Fool  v.  Gist,  4  McCord  (S.  C),  259 ; 
Wilkinson  v.  Griswold,  12  Sm.  &  M.  (Miss.)  669  ;  Morgan  v. 
Roberts,  38  111.  65. 

In  New  Jersey  it  has  been  held  not  to  be  lawful  for  two  or 
more  attorneys  to  create  a  partnership  and  prosecute  and  defend 
suits  in  the  name  of  the  firm.  Wilson  v.  Wilson,  5  N.  J.  L.  (2 
South.)  791. 

§  5.  Clerks.  During  an  attorney's  absence,  his  clerk  represents 
him  as  to  all  ordinary  business  of  the  office  {Power  v.  Kent,  1 
Cow.  211) ;  and  the  attorney  is  bound  by  the  acts  and  declara- 
tions of  his  clerk,  in  all  matters  within  the  scope  of  the  latter' a 
agency.  lb.;  BirkUck  v.  Staford,  23  How.  (N.  Y.)  236 ;  S.  C, 
14  Abb.  285.  But  however  extensive  the  general  powers  of  the 
clerk  may  be,  he  cannot  discontinue  an  action  without  the  con- 
sent of  his  principal  {Irmne  v.  Spring,  35  How.  [N.  Y.]  479 ; 
S.  C,  7  Rob.  293) ;  nor  can  he  bind  the  attorney's  client  by  a 
discharge,  without  satisfaction,  of  a  debt  due  the  client.  Even 
the  attorney  has  no  authority  to  do  this.  Carter  v.  Talcott,  10 
Vt.  471. 

ARTICLE  VIII 

DEALINGS   BETWEEN  ATTORNEY  AND   CLIENT. 

Section  1.  In  general.  The  highest  degree  of  good  faith  is 
required  from  an  attorney,  who,  while  the  relation  and  tlie  con- 
fidence incident  to  it,  exists  enters  into  bargains  and  dealings 
with  his  client.  The  confidential  nature  of  the  relation  enables 
the  attorney  to  exercise  a  strong  influence  over  the  actions  of  his 
client,  puts  it  in  his  power  to  avail  himself  of  his  necessities,  his 
YoL.  1  —  59 


466  ATTORNEYS. 

good  nature,  liberality  and  credulity  ;  and  hence  the  law  not 
only  watches  over  all  the  transactions  of  parties  in  this  predica- 
ment, but  often  interposes  to  declare  void  transactions  which, 
between  other  parties,  would  be  held  unobjectionable.  See  Bibh 
V.  Smith,  1  Dana(Ky.),  582  ;  Mills  v.  Mills,  26  Conn.  213  ;  Starr 
V.  Vanderlieyden,  9  Johns.  253  ;  Downing  v.  Major,  2  Dana 
(Ky.),  228  ;  Payne  v.  Avery,  21  Mich.  524.  But  where  the  rela- 
tion of  attorney  and  client  is  completely  dissolved,  and  the  par- 
ties are  no  longer  under  the  antecedent  influence,  this  rule  ceases, 
and  they  stand  upon  the  rights  and  duties  common  to  all  other 
persons.  Gibson  v.  Jeyes,  6  Yes.  277 ;  Rose  v.  Myiiati,  7  Yerg. 
(Tenn.)  30 ;  Phillips  v.  Overton,  4  Hay  w.  (Tenn.)  291 ;  Mason  v. 
Bing,  3  Abb.  Ct.  App.  (N.  Y.)  210. 

§  2.  Presumptions.  Whenever  a  contract  between  an  attorney 
and  his  client  inures  greatly  to  the  advantage  and  benefit  of  the 
attorney,  the  court  will  scrutinize  the  transaction  with  extreme 
vigilance.  In  such  cases,  all  presumptions  are  in  favor  of  the 
client,  and  against  the  propriety  of  the  transaction,  and  the  bur- 
den of  proof  is  upon  the  attorney  to  show,  by  extrinsic  evidence, 
that  all  was  fair  and  just,  and  that  his  client  acted  understand- 
ingly  and  with  a  full  knowledge  of  all  the  facts  connected  with 
the  transaction  or  the  subject-matter.  McMahon  v.  Smith,  6 
Heisk.  (Tenn.)  167  ;  Jennings  v.  McConnell,  17  111.  148 ;  Haight 
V.  Moore,  5  Jones  &  Sp.  (N.  Y.)  161 ;  Kisling  v.  Shaio,  33  Cal. 
425.  So,  where  a  person  acting  as  attorney,  agent,  or  confiden- 
tial adviser  of  another  receives  a  gift  from  the  latter,  the  pre- 
sumption is  against  the  propriety  and  validity  of  the  transaction; 
but  this  presumption  may  be  overcome  by  evidence  that  the 
transaction  was  voluntary  and  fair.  Neshlt  v.  Lockman,  34 
N.  Y.  (7  Tiff.)  167 ;  Burling  v.  King,  46  How.  (N.  Y.)  452  ;  S.  C, 
2  N.  Y.  S.  C.  (T.  &  C.)  545. 

§  3.  Relief  granted  to  client.  In  case  of  hard  and  unconscion- 
able bargains  between  a  client  and  his  attorney,  made  under  the 
pressure  of  adverse  circumstances,  equity  will  afford  appropriate 
relief.  Downing  v.  Major,  2  Dana  (Ky.),  228  ;  and  see  Miles  v. 
Erwin,  1  McCord's  Ch.  (S.  C.)  524 ;  De  Rose  v.  Fay,  4  Edw.  (N. 
Y.)  40 ;  Brock  v.  Barnes,  40  Barb.  (N.  Y.)  521.  If  an  attorney 
conceals  from  his  client  a  proposition  made  by  the  debtor  to  the 
client,  tlirough  the  attorney,  and  the  latter  derives  a  benefit  from 
such  concealment,  it  is  a  fraud,  and  he  cannot  profit  by  the  con- 
cealment. Hoopes  v.  Burnett,  26  Miss.  428.  So,  if  an  attorney 
deceives  his  client  by  false  representations,  or  knowingly  permits 


ATTORNEYS.  467 

him  to  be  deceived  by  the  false  representations  of  others,  he  vio- 
lates his  duty  as  such,  and  will  not  be  permitted  to  avail  liimself 
of  a  contract  made  under  such  circumstances.  Smith  v.  Tltomp- 
son,  7  B.  Monr.  (Ky.)  305 ;  Marshall  v.  Joy,  17  Vt.  546 ;  see 
Trotter  v.  Smith,  59  111.  240.  And  the  receipt  by  a  client  from 
his  attorney  of  a  part  of  the  proceeds  of  his  claim,  when  more 
might  have  been  collected  by  the  employment  of  ordinary  care 
and  skill,  is  neither  an  accord  and  satisfaction,  nor  an  estoppel. 
Goodman  v.  Walker,  30  Ala.  482. 

§  4.  Protection  to  attorney.  While  a  bargain,  between  attorney 
and  client,  is  viewed  with  great  jealousy  and  suspicion,  and 
while  its  entire  fairness  must  be  shown  by  the  attorney  who 
claims  the  benefit  of  it,  there  is  no  inexorable  rule  pronouncing 
its  illegality.  Thus,  a  deed  from  a  client  to  his  attorney  and 
counsel,  for  the  consideration  of  affection,  and  also  for  a  sum  of 
money,  though  much  less  than  the  value  of  the  land  conveyed, 
will  not  be  set  aside,  in  the  absence  of  evidence  of  incapacity  or 
imbecility  in  the  grantor,  or  of  fraud  and  imposition  by  the 
grantee.  Wendell  v.  Van  Rensselaer,  1  Johns.  Oh.  344.  The 
presumption  of  fraud  or  undue  influence  is  not  so  strong  in  law, 
that  it  cannot  be  overcome  by  evidence  ;  and  if  the  attorney  can 
show  that  all  was  fair,  and  that  the  client  acted  freely  and 
understandingly,  he  will  be  protected.  See  Brock  v.  Barnes,  40 
Barb.  521  ;  NesMt  v.  Lockman,  34  N.  Y.  (7  Tiff.)  167 ;  Miles  v. 
Ermn,  1  McCord's  Ch.  (S.  C.)  524. 

§5.  Purchases  adverse  to  client.  While  the  relation  of  attorney 
and  counsel  exists,  the  attorne}'^  is  not  permitted  to  take  advant- 
age of  his  client's  affairs  or  speculate  upon  his  interests.  Hence, 
the  law  forbids  an  attorney  to  purchase,  against  the  interest  of 
his  client,  property  sold  in  the  course  of  litigation,  in  which  he 
is  retained,  aTid  holds  such  sales  void,  or  the  attorney  will  be 
treated  as  the  trustee  of  the  client.  Harper  v.  Perry,  28  Iowa, 
57 ;  Haioley  v.  Cramer,  4  Cow.  717 ;  Davis  v.  Smith,  43  Vt.  269  ; 
Hatch  V.  Fogerty,  40  How.  (N.  Y.)  492;  S.  C,  10  Abb.  (N.  S.)  147  ; 
Warren  v.  Hawkins,  49  Mo.  137 ;  ante,  246. 

§  6.  Attorney  held  as  trustee.  In  many  cases  a  client  may 
require  an  estate  purchased  by  the  attorney  to  be  held  in  trust 
for  the  former.  Wheeler  v.  Willard,  44  Vt.  640.  Thus,  if  an 
attorney  purchases  an  opposing  or  outstanding  title  to  land,  the 
knowledge  of  which  he  has  obtained  during  the  continuance  of 
professional  relations  to  his  client,  such  purchase  will  inure  to 
the  benefit  of  the  client,  while  he  holds  the  land,  or  to  that  of 


468  ATTORNEYS. 

his  vendee,  after  he  has  conveyed  his  interest.  Henry  v.  Raman, 
25  Penn.  St.  354  ;  Hockenhury  v.  Carlisle,  5  "Watts  &  S.  (Penn.) 
348  ;  and  see  Moore  v.  BracJcen,  27  III.  23 ;  Giddings  v.  East- 
man, 5  Paige,  661 ;  ante,  246.  The  cestui  que  trust  must,  how- 
ever, do  equity  by  reimbursing  the  outlay  and  costs  of  the 
trustee,  unless  it  may  be  in  a  case  of  manifest  fraud  intended 
and  attempted  to  be  perpetrated.  Smith  v.  Brotherline,  62  Penn. 
St.  461. 

ARTICLE  IX. 

PKIVILEGED  COMMUNICATIONS. 

Section  1.  In  general.  It  is  the  general  rule,  that  communica- 
tions between  attorney  and  client  in  reference  to  all  matters 
which  are  the  proper  subject  of  professional  employment  are 
privileged.  This  includes  all  communications  made  by  a  client 
to  his  attorney  or  counsel,  for  the  purposes  of  professional  advice 
or  assistance,  whether  such  advice  relates  to  a  suit  pending,  one 
contemplated,  or  to  any  other  matter  proper  for  such  advice  or 
aid.  Yates  v.  Olmsted,  m  N.  Y.  (11  Sick.)  632 ;  Britton  v. 
Lorenz,  45  N.  Y.  (6  Hand)  51 ;  Bigler  v.  ReyTier,  43  Ind.  112  ; 
McClellan  v.  Longfellow,  32  Me.  494  ;  Johnson  v.  Sullinan,  23 
Mo.  474  ;  Wetherhee  v.  Ezekiel,  25  Vt.  47.  And  the  privilege 
extends  equally  to  both  parties.  Games  v.  Piatt,  4  Jones  &  Sp. 
(N.  Y.)  360  ;  S.  C,  15  Abb.  (N.  S.)  337  ;  59  N.  Y.  (14  Sick.)  405  ; 
Minet  v.  Morgan,  L.  R.,  8  Ch.  361.  So,  it  extends  to  an  attor- 
ney employed  to  draw  a  deed  {Linthicum  v.  Remington, 
5  Cranch  [C.  C],  546) ;  and  to  an  interpreter  employed  to 
translate  between  the  attorney  and  the  client  {Parker  v.  Carter, 
4  Munf.  [Va.]  273);  and  a  communication  made  by  a  client 
to  an  attorney's  clerk,  in  regard  to  a  suit  prosecuted  by  the 
clerk's  principal  as  attorney,  is  equally  privileged  as  if  made 
to  the  attorney  in  person.  Landsberger  v.  Gorham,  5  Cal.  450 ; 
Sihley  v.  Waffie,  16  N.  Y.  (2  Smith)  180.  Communications 
made  to  a  prosecuting  attorney,  relative  to  criminals  or 
suspected  persons,  are  likewise  privileged,  and  cannot  be 
divulged  without  the  consent  of  the  person  making  them. 
Oliver  v.  Pate,  43  Ind.  132 ;  State  v.  Hazleton,  15  La.  Ann.  72. 
And  a  sheriff  is  entitled  to  the  same  privilege,  in  his  communi- 
cations with  his  attorney,  as  other  persons.  Paxton  v.  Steckel, 
2  Penn.  St.  93.  But  the  rule  does  not  extend  to  the  protection 
of  communications  made  to  mere  conveyancers,  or  to  a  scrivener. 


ATTORNEYS.  469 

Matthews'  Estate,  5  Penn.  Law  J.  Rep.  149  ;  Randel  v.  Yates, 
48  Miss.  685. 

The  privilege  is  accorded  on  grounds  of  public  policy,  and  in 
order  to  facilitate  the  administration  of  justice.  That  the  attor- 
ney is  willing  to  divulge  the  communications  is  not  enough  to 
warrant  receiving  them.  Chirac  v.  Reinicker,  11  Wheat.  280  ; 
Jenkinson  v.  State,  6  Blackf.  (Ind.)  465.  And  where  they  are 
made  by  two  or  more  clients  jointly,  to  their  common  legal 
adviser,  the  seal  of  confidence  can  only  be  removed  by  all  of 
them  ;  the  consent  of  a  majority  is  not  even  sufficient,  and  one 
or  more  of  them  cannot  require  a  disclosure  as  evidence  against 
the  others,  without  theu'  consent.  Whiting  v.  Barney,  38  Barb. 
393 ;  Bank  of  Utica  v.  Mersereau,  3  Barb.  Ch.  528,  596 ;  see 
Ghahoon  v.  State,  21  Gratt.  (Va.)  822.  The  privilege  of  the  attor- 
ney extends  to  all  information  derived  from  his  client,  as  such, 
either  by  oral  communications,  or  from  books  or  papers  shown 
to  him  by  his  client,  or  placed  in  his  hands  in  his  character  of 
attorney  or  counsel  by  such  client.  Crosby  v.  Berger,  11  Paige, 
877.  And  the  privilege  is  not  affected  by  the  fact  that  no  fee  was 
asked  or  expected.  McManners  v.  State,  2  Head  (Tenn.),  213; 
March  v.  Ludlum,  3  Sandf.  Ch.  (N.  Y.)  35.  The  relation  of 
attorney  and  client  must,  however,  exist  at  the  tim^e,  and  the 
communication  must  be  made  for  the  purpose  of  obtaining 
advice  in  regard  to  legal  rights.  Earle  v.  Grout,  46  Yt.  113 ; 
see  Childs  v.  Delaney,  1  N.  Y.  S.  C.  (T.  &  C.)  60^.  The  burden 
lies  on  him  who  seeks  to  exclude  communications  as  privileged, 
to  show  facts  constituting  the  privilege.  Id. 

§  2.  Exceptions  and  limits  to  rule.  The  rule  as  to  the  exclu- 
sion of  testimony  on  privileged  communications,  should  be 
strictly  construed.  Satterlee  v.  Bliss,  36  Cal.  487.  The  commu- 
nications must  be  of  a  confidential  and  professional  character, 
and  the  attorney  must  be  acting  for  the  time  being,  in  the  charac- 
ter of  legal  adviser,  or  the  party  must  have  good  reason  to  sup- 
pose he  is  so  acting  {Coon  v.  Swan,  30  Vt.  6);  and  acting  upon 
the  very  matter  to  which  the  communication  referred.  Branden 
V.  Gowing,  7  Rich.  (S.  C.)  459 ;  McManus  v.  State,  2  Head 
(Tenn.),  213 ;  Flack  v.  Nelll,  2Q  Tex.  273.  An  attorney  is  bound 
to  testify,  like  any  other  witness,  to  statements  made  by  the 
client  to  other  persons,  or  by  other  j)ersons  to  tlie  client,  or  to 
each  other  in  his  presence  {Gallagher  v.  Williamson,  23  Cal. 
331) ;  and  generally,  an  attorney  may  be  required  to  disclose 
facts  which  he  learned  from  other  sources  than  his  client. 
Croshy  v.   Berger,  11   Paige,   377;    Rogers  v.  Dare,  Wrighc 


470  AT^TORNEYS. 

(Ohio),  136  ;  Hunter  v.  Watson,  12  Cal.  363  ;  Beeson  v.  Beeson^ 
9  Penn.  St.  279.  And  he  may  be  required  to  testify  as  to  acts 
done  by  the  client,  in  his  presence,  such  as  the  execution  of  a 
writing,  though  he  was  present  in  consequence  of  his  engage- 
ment as  counsel.  Patten  v.  Moor,  29  N.  H.  163.  Communica- 
tions made  by  one  who  is  a  nominal  party,  but  has  no  interest 
in  the  suit,  are  not  privileged  {Allen  v.  Harrison,  30  Vt.  219) ; 
nor  does  the  privilege  extend  to  information  received,  from  the 
party,  by  one  in  the  character  of  a  friend,  and  not  as  counsel 
{Hoffman  v.  Smith,  1  Cai.  157 ;  Ooltra  v.  Wolcotf,  14  111.  89) ; 
nor  to  a  communication  voluntarily  made  to  counsel,  after  he  has 
refused  to  be  employed  by  the  party  making  it.  /Setzar  v.  Wil- 
son, 4  Ired.  L.  (N.  C.)  501.  So,  where  the  attorney  or  counsel 
has  an  interest  in  the  facts  communicated  to  him,  or  when  their 
disclosure  becomes  necessary  to  protect  his  own  personal  rights, 
he  is  exempted  from  the  obligation  of  secrecy.  Rochester  City 
Bank  v.  Buy  dam,  5  How.  (N.  Y.)  254 ;  see  Mitchell  v.  Brom- 
lerger,  2  Nev.  345  ;  Nave  v.  Baird,  12  Ind.  818. 

The  privilege  does  not  extend  to  a  mere  conveyancer  {Mat- 
thews^ Estate,  1  Phil.  [Penn.]  292) ;  nor  to  an  attorney  who  is 
merely  employed  to  draw  a  deed  or  mortgage  without  giving  any 
legal  advice  in  regard  thereto  {Hutton  v.  Robinson,  14  Pick. 
[Mass.]  416  ;  Be  Wolf  v.  Strader,  26  111.  225 ;  Borum  v.  Fonts, 
15  Ind.  50  ;  Randel  v.  Yates,  48  Miss.  685  ;  but  see  Linthicum 
V.  Remington,  5  Cranch  [C.  C],  546) ;  nor  to  a  student  at  law," 
because  studying  in  an  attorney's  office,  or  under  his  direction 
{Holman  v.  Kimball,  22  Yt.  555 ;  Barnes  v.  Harris,  7  Cush. 
[Mass.]  576) ;  nor  to  third  persons  present  at  a  confei-ence 
between  attorney  and  client.  Hay  v.  Morris,  13  Gray  (Mass.), 
519;  Goddardy.  Gardner,  28  Conn.  172. 

§  3.  Presence  of  both  parties.  Agreements  made  in  the  pres- 
ence of  an  attorney,  between  his  client  and  the  opposite  party, 
are  not  privileged.  Carr  v.  Weld,  15  N.  J.  L.  (3  Grreen)  314. 
Xor  is  a  communication  made  by  one  party  to  his  attorney  and 
counsel,  in  the  presence  of  the  other  party,  privileged.  Dunn  v. 
Amos,  14  Wis.  106  ;  Whiting  v.  Barney,  30  N.  Y.  (3  Tiff:)  330  ; 
see  Hemenway  v.  Smith,  28  Yt.  701.  And  the  same  is  true  of 
communications  by  one  party  to  the  attorney  of  the  other,  look- 
ing toward  a  compromise.  McLean  v.  Clark,  47  Ga.  24.  So, 
where  two  parties  select  the  same  attorney,  and  make  their  com 
inanications  in  the  presence  of  eacli  other,  in  regard  to  the  same 
yubject-matter,  each  party  waives  his  right  to  regard  those  com- 
munications as  contidential,  and  in  asserting  their  rights  undei 


ATTORNEYS.  471 

the  contract,  each  is  entitled  to  a  disclosure  of  its  stipulations. 
Parish  v.  Gates,  29  Ala.  254. 

An  attorney  is  not  privileged  as  a  witness  from  communicat- 
ing facts  concerning  his  client,  when  he  himself  is  a  party  to  the 
transaction.     Jeanes  v.  Fridenherg,  3  Penn.  Law  J.  Rep.  199. 

§  4.  Production  of  papers.  An  attorne^^  who,  as  such,  has 
been  intrusted  with  papers,  is  not  bound  to  produce  them  in 
evidence,  on  the  call  of  the  opposite  party,  or  of  a  third  person. 
Kellogg  v.  Kellogg,  6  Barb.  116  ;  Durkee  v.  Leland,  4  Vt.  612  ; 
Lynde  v.  Judd,  3  Day  (Conn.),  499 ;  People  v.  Benjamin,  9 
How.  (N.  Y.)  419  ;  2  Wait's  Pr.  536  ;  1  id.  240.  But  all  papers 
intrusted  to  an  attorney  in  professional  conlidence  are  not  neces- 
sarily to  be  deemed  confidential  communications  {MiichelVs  Case, 
12  Abb.  [N.  Y.]  249) ;  and  it  has  been  held,  that  their  production 
can  be  resisted  only  when  a  controvers}^  exists,  or  is  anticipated 
between  the  parties,  in  relation  to  the  subject  on  which  commu- 
nications were  made  to  counsel,  on  the  documents  intrusted  to 
him.  Peck  v.  Willlairis,  13  id.  68.  An  attorney  who  has  in  his 
possession  receipts  which  his  client  could  be  compelled  to  pro- 
duce or  disclose,  can  also  be  compelled  to  produce  them  or 
testify  as  to  their  contents.  Ex  parte  Maulshy,  13  Md.  625 ; 
Andrews  v.  Olilo,  etc.,  R.  R.  Co.,  14  Ind.  169. 

§  5.  Waiving  privilege.  The  client  may  waive  his  privilege, 
and  wlien  he  calls  upon  the  attorney  to  testify,  or  his  consent  is 
in  some  way  shown,  the  attorney  may  be  required  to  do  so. 
Benjamin  v.  Coventry,  19  Wend.  353 ;  Fossler  v.  .^cTiriber,  38 
111.  172  ;  Riddles  v.  Aikin,  29  Mo.  453.  And  where  the  plaintiff 
examines  his  attorney  as  a  witness,  he  thereby  waives  his  privi- 
lege, and,  upon  a  cross-examination,  the  attorney  is  bound  to 
answer  generally.  Crittenden  v.  StrotJier,  2  Cranch  (C.  C),  464 ; 
see  King  v.  Barrett,  11  Ohio  St.  261 ;  Woburn  v.  Hensliaw,  101 
Mass.  193. 

§  6.  Termination  of  privilege.  The  privilege  endures  forever, 
unless  removed  by  tlie  client  {Bank  of  Utica  v.  Mersereau,  3 
Barb.  Ch.  [N.  Y.]  528,  696) ;  and  the  attorney  cannot,  after  he 
ceases  to  be  the  attorney  of  a  party,  disclose  what  was  com- 
municated to  him  in  that  capacity.  Andrews  v.  Thoviioson,  1 
Houst.  (Del.)  522  ;  Yordon  v.  Hess,  13  Johns.  492.  But  if,  after 
that  relation  has  ceased,  the  client  voluntarily  repeats  to  the 
attorney  what  he  had  communicated  during  the  existence  of  the 
relation,  the  attorney  is  a  competent  witness  as  to  this  commu- 
nication. Id.  ;  and  see  Williams  v.  Benton,  12  La.  Ann.  91. 
So,  the  privilege  ceases  after  the  death  of  the  client,  where  the 


472  ATTORNEYS. 

solicitor  has  been   made  his  executor  and  residuary  legatee. 
Croshy  v.  Berger,  4  Edw.  (N.Y.)  254;  S.  C.  affirmed,  11  Paige,  377. 

§  7.  What  are  privileged  communications.  It  has  been  held, 
that  an  attorney  cannot  be  compelled  to  testify  as  to  what  claim 
oi-  title  he  was  employed  to  maintain  {Chirac  v.  Reinicker,  11 
Wheat.  280) ;  nor,  as  to  the  condition  and  appearance  of  a  deed 
of  trust  and  the  trust  notes  at  the  time  they  were  exhibited  to 
him  on  the  occasion  of  his  employment  for  the  purpose  of  fore- 
closing tlie  deed  of  trust  {Gray  v.  Fox^  43  Mo.  570) ;  nor,  as  to 
whether  or  not  a  certain  guaranty,  written  above  the  payee's 
name,  in  a  different  handwriting,  on  a  back  of  a  note,  was  there 
when  placed  in  his  hands  for  collection.  Dietrich  v.  Mitchell, 
43  111.  40.  And  the  attorney  of  a  plaintiff  in  ejectment,  who  is 
administrator  of  an  estate,  cannot  be  compelled  to  testify  whether 
or  not  he  is  employed  to  bring  the  suit  for  the  individual  benefit 
of  his  client.  Stephens  v.  Mattox,  37  Ga.  289.  So,  where  an 
attorney  had  erased  an  indorsement  on  a  bond,  held  by  his 
client,  on  which  a  suit  was  pending,  and  had  no  knowledge  of 
the  contents  of  the  indorsement,  except  what  was  obtained  as 
attorney  in  the  cause,  he  was  held  not  to  be  bound  to  testify  as 
to  those  contents.  Crawford  v.  M^  KissacJc,  1  Port.  (Ala.)  433. 
In  an  action  on  a  promissory  note,  the  plaintiff's  attorney  was 
called  as  a  witness  to  prove  that  the  note  was  not  the  property 
of  the  plaintiff.  He  declined  to  state  any  communications  made 
to  him  by  his  client,  and  the  court  refused  to  compel  him. 
Miller  V.  Weeks,  22  Penn.  St.  89. 

§  8.  What  not  privileged.  An  attorney  may,  however,  be  com- 
pelled to  disclose  the  name  of  the  person  by  whom  he  was 
employed  {Martin  v.  Anderson,  21  Ga.  301 ;  Brown  v.  Payson, 
6  N.  H.  443 ;  Gower  v.  Emery,  18  Me.  79) ;  the  character  in 
which  his  client  employed  him  {Beckwith  v.  Benner,  6  C.  &  P. 
681) ;  the  time  when  an  instrument  was  put  into  his  hands 
{Brown  v.  Payson,  6  N-  H.  443  ;  Wheatley  v.  Williams,  1  Mees. 
&  Wels.  633) ;  collateral  facts,  as  that  a  bond  was  lodged  with 
the  client,  by  way  of  indemnity,  or  that  he  expressed  himself 
satisfied  with  a  certain  security.  Heister  v.  Davis,  3  Yeates 
(Penn.),  4.  He  may  also  be  examined  as  to  the  handwriting  of 
his  client  {Johnson  v.  Daverne,  19  Johns.  134) ;  or  be  called  to 
prove  the  identity  of  his  client  {Beckioiih  v.  Benner,  6  C.  &  P. 
681);  or  to  disclose  terms  of  compromise  offered  by  him  to  his 
client's  creditors  {M^  Tamsh  v.  Dunning,  Anth.  N.  P.  [N.  Y.] 
82  ;  id.  113) ;  and  a  question  as  to  the  amount  of  an  attorney's 
fee,  and  the  terms  on  which  it  was  paid,  when  relevant,  is  allow- 


ATTORNEYS.  473 

able.  Shaughnessy  v.  Fogg,  15  La.  Ann.  330 ;  SmitJiwick  v. 
Evans,  24  Ga.  461.  So,  an  attorney  who  draws  up  a  will  is 
competent  to  testify  of  its  contents,  in  order  to  set  it  up  as  a 
lost  will.     Graham  v.  0'' Fallon,  4  Mo.  338. 

Where  the  attorney  and  client  both  engage  in  committing  a 
wrongful  act,  the  former  cannot  refuse  to  disclose  the  facts  of 
the  transaction,  on  the  ground  that  his  knowledge  thereof 
resulted  from  the  relationship  of  attorney  and  client.  Dudley 
V.  Beck,  3  Wis.  274.  And  facts  stated  to  an  attorney,  to  show 
that  the  cause  in  which  he  is  sought  to  be  retained,  does  not 
conflict  with  the  interests  of  a  client  for  whom  he  is  already 
employed,  are  not  confidential  communications.  Heaton  v. 
Findlay,  21  Penn.  St.  304.  So,  when  an  attorney,  while  acting 
professionally  for  a  client,  receives  at  the  latter' s  request  a  deed 
of  his  land,  and  conveys  it  to  a  third  party,  no  consideration 
moving  in  either  of  the  transactions,  these  facts  are  not  privi- 
leged.   Hager  v.  Shindler,  29  Cal.  47. 

ARTICLE  X. 

DISBAKRING. 

Section  1.  In  general.  The  power  to  disbar  an  attorney  is 
possessed  by  all  courts  which  have  authority  to  admit  attorneys 
to  practice.  But  it  is  a  power  which  should  only  be  exercised 
for  the  most  weighty  reasons,  such  as  would  render  the  con- 
tinuance of  the  attorney  in  practice  incompatible  with  a  proper 
respect  of  the  court  for  itself,  or  a  proper  regard  for  the  integrity 
of  the  profession.  And  it  has  been  said  that  a  removal  from 
the  bar  should  never  be  decreed  where  any  punishment  less 
severe  —  such  as  reprimand,  temporary  suspension,  or  fine  — 
would  accomplish  the  end  desired.  See  Bradley  v.  Fisher,  13 
Wall.  335 ;  Ex  parte  Garland,  4  id.  333,  379 ;  Ex  parte  Burr, 
9  Wheat.  529. 

§  2.  What  is  ground  for.  An  attorney  can  be  disbarred,  only 
on  the  ground  of  moral  or  professional  delinquency.  The  doc- 
trine has  been  held  that  the  power  of  the  court  to  disbar  may  be 
exercised,  either  for  a  contempt,  which  is  an  offense  against  the 
court  itself,  or  for  unfitness,  which  disqualifies  the  attorney  from 
filling  the  office  properly.  Austin's  Case,  5  Rawle  (Penn.),  191. 
So,  the  obligation  which  attorneys  assume  when  they  are 
admitted  to  the  bar  is  not  discharged  by  merely  observing  the 
rules  of  courteous  demeanor  in  open  court,  but  also  includes 
Vol.  L  —  60 


474  ATTORNEYS. 

the  abstaining  out  of  court  from  insulting  language  and  offen- 
sive conduct  toward  the  judges  personally  for  their  judicial 
acts.  And  a  threat  of  personal  chastisement,  made  by  an  attor- 
ney to  a  judge  out  of  court  for  his  conduct  during  the  trial  of  a 
cause  pending,  is  sufficient  ground  for  striking  his  name  from 
the  rolls.  Bradley  v.  Fisher^  13  Wall.  335.  See  Jackson  v. 
State,  21  Tex.  668. 

Where  an  attorney  had  been  convicted  of  subornation  of  per- 
jury, he  was  held  to  have  been  properly  disbarred  {State  v. 
Holding,  1  McCord  [S.  C],  379) ;  and  so,  for  a  false  oath  or  pro- 
fessional statement  without  a  conviction  for  perjury.  Perry  v. 
State,  3  Iowa,  550.  And  see  In  re  Percy,  36  N.  Y.  (9  Tiff.)  651. 
It  is  good  cause  for  striking  an  attorney  from  the  roll,  that  he 
accepted  a  challenge  to  fight  a  duel,  or  that  he  fought  a  duel  in 
a  sister  State,  and  killed  his  antagonist  {Smith  v.  State,  1  Yerg. 
[Tenn.]  928) ;  or  that  he  attempted  to  make  an  opposing  attorney 
drunk,  in  order  to  obtain  an  advantage  over  him  in  the  trial  of  a 
cause  {Dickens^  Case,  67  Penn.  St.  169) ;  and  generally,  it  seems 
that  the  court  may  strike  the  name  of  an  attorney  at  law  from 
the  rolls  for  fraudulent  conduct,  although  it  is  not  so  gross  as  to 
be  criminally  punishable.  United  States  v.  Porter,  2  Cranch  (C. 
C),  60.  But  discreditable  acts,  if  not  infamous  and  not  con- 
nected with  an  attorney's  duties,  will  not  give  the  court  juris- 
diction to  strike  him  from  the  roll.  Dickens'  Case,  67  Penn.  St. 
169 ;  S.  C,  5  Am.  Rep.  420. 

Where  a, statute  prescribes  causes  for  which  an  attorney  may 
be  disbarred,  the  courts  cannot  disbar  him  for  causes  not  speci- 
fied in  the  statute.  Ex,  parte  Smith,  28  Ind.  47  ;  see,  also.  Bed- 
man  V.  State,  id.  205  ;  Kane  v.  Hayioood,  QQ  N.  C.  1. 

§  3.  Notice  to  attorney.  Except  where  matters  occurring  in 
open  court,  in  presence  of  the  judges,  constitute  the  grounds  of 
its  action,  the  power  of  the  court  to  disbar  should  never  be 
exercised  without  notice  to  the  offending  party  of  the  grounds 
of  complaint  against  him,  and  affording  him  ample  opportunity 
of  explanation  and  defense.  This  is  said  to  be  a  rule  of  natural 
justice,  and  it  is  as  applicable  to  cases  where  a  proceeding  is 
taken  to  reach  the  right  of  an  attorney  to  practice  his  profession, 
as  it  is  when  the  proceeding  is  taken  to  reach  his  real  or  per- 
sonal property.  Bradley  v.  Fisher,  13  Wall.  335,  354.  And 
even  where  the  matters  constituting  the  grounds  of  complaint 
have  occurred  in  open  court,  under  tlie  personal  observation  of 
the  judges,  the  attorney  should  ordinarily  be  heard  before  the 


ATTORNEYS.  475 

order  of  removal  is  made  ;  for  those  matters  may  not  be  incon- 
sistent with  the  absence  of  improper  motives  on  his  part,  or  may 
be  susceptible  of  such  explanation  as  would  mitigate  their 
offensive  character,  or  he  may  be  ready  to  make  all  proper 
reparation  and  apology.  Id.;  Ex  parte  Rohlnson,  19  id.  505; 
Ex  parte  Bradley,  7  id.  364  ;  Ex  parte  Heyfron,  7  How.  (Miss.) 
127 ;  Beene  v.  State,  22  Ark.  157 ;  People  v.  Turner,  1  Cal.  148 ; 
Fletcher  v.  Dainger field,  20  id.  430 ;  Saxton  v.  Stow  ell,  11 
Paige,  526. 

If  an  attorney  wishes  to  divest  himself  of  the  burden  and  dis 
tinction  of  his  office,  he  must  apply  to  the  court;  and  the  court 
will  strike  his  name  off  the  roll,   unless    the  application  is 
made  to  avoid  an  impending  censure.    Scott  v.  Van  Alstyae,  9 
Johns.  216 

§  4.  Decision  and  effect  of.  The  punishment  of  an  attorney, 
by  striking  his  name  off  the  roll,  is  not  in  every  case  to  be  con- 
sidered a  perpetual  disability.  If  his  offense  has  been  attended 
with  circumstances  of  extenuation,  and  his  subsequent  conduct 
proves  him  deserving  of  its  lenity,  the  court  may  order  him  to 
be  re-admitted,  upon  a  proper  application  made  for  the  purpose. 
Rex  V.  Greenwood,  1  W.  Bl.  222 ;  Ex  parte  Frost,  1  Chit. 
658,  n.  But  if  the  name  of  an  attorney  be  struck  off  by  one 
court,  he  will  not  afterward  be  admitted  in  any  other  {Re  Smith, 
1  B.  &  B.  522 ;  S.  C,  4  Moore,  319) ;  and  the  removal  of  a  soUci- 
tor  from  his  office,  as  solicitor  of  the  court  of  chancery,  deprives 
him  of  the  power  to  practice  as  solicitor,  attorney  or  counsel,  in 
any  other  court.  Matter  of  Peterson,  3  Paige,  510.  So,  when 
an  attorney  has  been  suspended,  he  will  not  be  permitted  to  act 
for  the  party  under  a  letter  of  attorney.  Paul  v.  Purcell,  1 
BrowDe  (Penn.),  348. 

§  5.  Restoration.  Mandamus  is  the  appropriate  remedy  to 
restore  an  attorney  disbarred,  where  the  court  below  has  exceeded 
its  juiisdiction  in  the  matter.  Ex  parte  Robinson,  19  Wall. 
505  ;  Ex  parte  Bradley,  7  id.  364.  Thus,  the  district  court  has 
no  authority  to  remove  from  office  one  who  has  been  admitted 
as  an  attorney  of  the  supreme  court ;  and,  if  it  does  so,  a  ma?i- 
damics  may  issue  to  restore  the  attorney  to  his  office.  People  v. 
Turner,  1  Cal.  143,  188,  190;  and  see  People,^.  Justices,  etc.,  1 
Johns.  Cas.  (N.  Y.)  181.  The  reason  given  for  the  issuing  of  the 
writ  is,  that  the  office  is  of  public  concern,  and  regai-ds  the 
administration  of  justice  ;  and  because  there  is  no  other  remedy. 
White's  Case,  6  Mod.  18;  Leigh's  Case,  3  id.  335;  S.  C,  Car- 
thew,  169, 170. 


476  AUCTIONEERS. 

CHAPTER  XIX. 

AUCTIONEERS. 

TITLE  L 

OF  AUCTIONS  AND  AUCTIONEEES  IN  GENERAL. 

ARTICLE  I. 

WHO  MAT   BE    AN"  AUCTIONEER. 

Section  1.  In  generaL  An  auction  is  a  public  sale  of  property 
to  the  highest  bidder  (see  Rex  v.  Taylor,  McClel.  362  ;  S.  C,  13 
Price,  336 ;  Walker  v.  Advocate,  etc.,  1  Dow,  H.  L.  Ill) ;  and 
an  auctioneer  is  one  who  conducts  a  public  sale  or  auction,  gen- 
erally under  the  authority  of  a  license  granted  to  him  for  that 
purpose.  Hu7it  v.  Philadelphia,  35  Penn.  St.  277 ;  State  v. 
ConJcUng,  19  Cal.  501 ;  Clark  v.  Cushman,  6  Mas.  505  ;  State  v. 
Rucker,  24  Mo.  557  ;  Waterhouse  v.  Dorr,  4  Me.  333.  A  distinc- 
tion is  to  be  observed  between  an  auctioneer  and  a  broker.  The 
former  can  neither  buy  for  himself  nor  for  a  third  person  ;  nor 
can  he  sell  at  private  sale.  But  the  latter  can  both  buy  and  sell 
at  private  sale.  Barker  v.  Mar.  Ins.  Co.,  2  Mas.  (C.  C)  369  ; 
Wilkes  V.  Ellis,  2  H.  Bl.  555 ;  and  see  M^  Mechen  v.  Mayor,  etc.^ 
of  Baltimore,  3  Harr.  &  J.  (Md.)  534  ;  ante,  79. 

§  2.  Statutes  relating  to.  Primarily,  an  auctioneer  is  the 
agent  of  the  seller  of  the  goods,  appointed  in  the  same  manner 
as  other  special  agents.  His  rights  and  duties  are  to  a  great 
extent  peculiar  to  his  special  business,  and  in  many  of  the  States 
these  are  limited  by  statute,  and  the  taking  out  of  a  license  is 
made  a  prerequisite  to  the  exercise  of  his  calling.  See  cases 
cited  above.  And  so  in  England,  by  8  and  9  Vict.  c.  15  ;  27  and 
28  Vict,  c,  56,  §  14.  A  bond  is  likewise  sometimes  required  by 
statute,  to  be  executed  by  a  person  desirous  of  doing  an  auction 
business,  as  a  security  for  his  private  customers,  as  well  as  for 
the  duties  payable  to  the  State.  See  Bams  v.  Commonwealth,  3 
Watts  (Penn.),  297;  Florence  v.  Richardson,  2  La.  Ann.  663; 
Mayor,  etc.,  of  Oeorgetoion  v.  Baker,  2  Cranch  (C.  C),  291 ;  City 
Council  v.  Patterson,  2  Bailey  (S.  C),  165. 


AUCTIONEERS.  477 

A  mere  verbal  authority  is  sufficient  to  authorize  an  agent  to 
act  as  auctioneer  and  to  sell  lands,  but  not  to  make  a  deed  of 
them.     Yourt  v.  Hopkins,  24  111.  326. 


ARTICLE  II. 

RIGHTS  AND  POWERS  OF   AUCTIONEERS. 

Section  I.  As  to  conditions  of  sale.  An  auctioneer  has  a  right 
to  prescribe  the  rules  of  bidding  and  the  terms  of  sale.  And 
the  conditions  of  sale,  printed  and  pasted  up  under  the  auc- 
tioneer's box,  or  in  the  auction  room,  where  he  declares  that  the 
conditions  are  as  usual,  is  sufficient  notice  to  purchasers  of  the 
conditions.  Mesnard  v.  Aldridge,  8  Esp.  271.  So,  verbal  dec- 
larations by  the  auctioneer  at  the  sale  are  admissible  against  the 
principal  and  will  bind  him,  unless  they  contradict  the  printed 
conditions,  in  which  case  they  are  not  binding  {Powell  v.  Ed- 
munds, 12  East,  6  ;  Gunnis  v.  Erhart,  1  H.  Bl.  289  ;  Wright  v. 
Deklyne,  Pet.  [C.  C]  199) ;  though  an  advertisement  of  a  sale 
of  property  by  an  auctioneer  may  be  explained  at  the  time  of 
sale.  Rankin  v.  Mattheios,  7  Ired.  L.  (N.  C.)  286.  See,  also, 
Boinest  v.  Leiznez,  2  Rich.  (S.  C.)  464  ;  Wainwriglit  v.  Read,  1 
Desau.  (S.  C)  573.  And  if  there  be  any  special  agreement,  vary- 
ing the  written  or  printed  conditions  of  sale,  the  parties  would 
not,  of  course,  be  bound  by  them.  Barilett  v.  Purnell,  4  Ad. 
&  El.  792  ;  Ex  parte  Gioynne,  12  Ves.  379. 

§  2.  May  receive  payment.  An  auctioneer  employed  to  sell 
goods  under  the  usual  conditions  may  receive  payment  for  them 
from  the  purchaser.  Yourt  v.  Hopkins,  24  111.  326  ;  Capel  v. 
Thornton,  L.  R.,  1  Q.  B.  352.  But  he  must  sell  for  cash,  and  has 
no  authority  to  receive  a  bill  of  exchange  instead  of  cash  (id.); 
though  it  would  seem  to  be  otherwise  as  to  a  check.  Thorold 
V.  Smith,  11  Mod.  87.  Where,  under  the  terms  of  the  conditions 
of  sale,  the  vendor  is  to  receive  the  purchase-money,  the  auc- 
tioneer is  not  authorized  to  accept  payment.  Sykes  v.  Giles,  5 
Mees.  &  W.  645,  652.  But  if  the  terms  of  sale  provide  that  a 
portion  of  the  purchase-money  shall  be  paid  within  a  given  time, 
and  the  auctioneer  is  authorized  to  receive  it,  his  authority  is 
not  revoked  immediately  upon  the  expiration  of  the  time  limited 
without  further  orders  from  his  principal  prohibiting  the  subse- 
quent reception  of  such  money.  Pinckney  v.  Hagadorn,  1  Duer 
(N.  Y.),  89. 


478  AUCTIONEERS. 

§  3.  No  right  to  warrant.  There  seems  to  be  a  doubt  whether, 
in  an  ordinary  sale  of  goods  by  auction,  an  auctioneer,  in  virtue 
of  his  office,  has  any  right  or  authority  to  warrant  goods  sold 
by  him,  in  the  absence  of  any  express  authority  from  his  princi- 
pal to  do  so,  and  without  proof  of  some  known  and  established 
usage  of  trade,  from  which  an  authority  can  be  implied.  See 
Upton  V.  Suffolk  County  Mills,  11  Cush.  (Mass.)  589 ;  Blood  v. 
French,  9  Gray  (Mass.),  197.  It  is  clear,,  however,  that  an  auc- 
tioneer has  no  authority  to  bind  an  administrator  personally,  by 
a  warranty  of  the  condition  of  goods  of  the  intestate  (id.); 
and  it  may  be  accepted  generally  as  the  true  doctrine  that  auc- 
tioneers are  special  agents,  having  authority  only  to  sell,  and 
not  to  warrant,  unless  specially  instructed  so  to  do.  The  Monte 
Allegre,  9  Wheat.  616,  647.  See  Dent  v.  McGrath,  3  Bush  (Ky.), 
174. 

§  4.  Cannot  delegate  his  powers.  The  authority  committed  to 
an  auctioneer  is  a  personal  trust  and  confidence,  which  he  cannot 
delegate  to  another.  Stone  v.  State,  12  Mo.  400.  He  may,  how- 
ever, employ  another  person  to  use  the  hammer  and  make  the 
outcry,  under  his  immediate  supervision  and  direction  ;  and, 
although  he  is  occasionally  absent  during  the  sale,  the  agent 
will  not  incur  the  penalty  of  selling  without  license.  Com- 
monwealth V.  Harnden,  19  Pick.  (Mass.)  482.  He  may  also 
employ  all  necessary  and  proper  clerks  and  servants  to  assist 
him  in  the  sale.  Id. ;  ante,  244.  And  see  Force  v.  Bonneval,  6 
La.  Ann.  386. 

§  5.  Limited  to  perfecting  sale  by  auction.  An  auctioneer  is 
an  agent  to  effect  a  sale,  and  as  soon  as  the  sale  is  perfected  his 
agency  ceases.  If  he  has  pursued  his  instructions,  he  is  in  no 
manner  liable  for  the  execution  of  the  contract,  and  can  neither 
add  to  nor  take  from  the  terms  and  conditions  the  principal  has 
prescribed.  Boinest  v.  Leignez,  2  Rich.  (S.  C.)  464;  Nelson  v. 
Aldridge,  2  Stark.  N.  P.  43.5.  Although  he  may  sell  lands  under 
a  verbal  authority,  he  cannot  execute  a  deed  of  them  without  a 
written  power.     Tourt  v.  Hoplcins,  24  111,  326. 

§  6.  May  bring  actions.  In  case  of  personal  property,  an 
auctioneer  employed  to  sell  may  ordinarily  maintain  an  action 
for  the  price,  or  for  the  property  itself.  Atkyns  v.  Amher,  2 
Esp.  493  ;  Tyler  v.  Freeman,  3  Cush.  (Mass.)  261.  This  doctrine 
is  founded  upon  the  right  of  the  auctioneer  to  receive,  and  his 
responsibility  to  his  principal  for,  the  price  of  the  property 
sold,  and  his  lien  thereon  for  his  commissions,  which  give  him 


AUCTIONEERS.  479 

a  special  property  in  the  goods  intrusted  to  him  for  sale,  and  an 
interest  in  the  proceeds.  Beller  v.  Blacky  19  Ark.  566 ;  Hulse  v. 
Young,  16  Johns.  1  ;  Minturn  v.  Main,  7  N.  Y.  (3  Seld.)  220. 
As  it  regards  real  estate  the  case  is  different.  The  auctioneer 
can  have  no  such  special  property  in  it,  and  would  not  ordi- 
narily be  held  entitled  to  receive  the  price  for  it.  But  when  the 
terms  of  his  employment,  and  of  the  authorized  sale,  contem- 
plate the  payment  of  a  deposit  into  his  hands  at  the  time  of  the 
auction,  and  before  tlie  completion  of  the  sale  by  the  delivery 
of  the  deed,  he  stands,  in  relation  to  such  deposit,  in  the  same 
position  as  he  does  to  the  price  of  personal  property  sold  and 
delivered  by  him.  He  may  receive  and  receipt  for  the  deposit ; 
his  lien  for  commissions  will  attach  to  it ;  and  he  may  sue  for  it 
in  his  own  name  whenever  an  action  for  the  deposit,  separate 
from  the  other  purchase-money,  may  become  necessary.  Thomp- 
son V.  Kdly,  101  Mass.  291 ;  S.  C,  3  Am.  Rep.  352.  See  post, 
488,  art.  8,  §  1. 

§  7.  Cannot  sell  at  private  sale.  In  no  case  can  an  auctioneer, 
under  his  authority  as  sucli,  negotiate  a  private  sale  after  failure 
at  an  auction  sale.  Daniel  v.  Adams,  Ambl.  495  ;  Jones  v. 
Nanney,  13  Price,  76  ;  S.  C,  M'Clel.  25  ;  Seton  v.  Shade,  7  Yes. 
276  ;  Marsli  v.  JeTf,  3  F.  &  F.  234. 

§  8.  Cannot  bid  or  buy  for  another.  Ordinarily,  an  auctioneer 
cannot  purchase  the  goods  of  his  principal,  either  for  himself  or 
for  a  third  person.  Were  he  permitted  to  do  so,  his  interest  as 
agent  would  be  utterly  incompatible  with  his  interest  as  pur- 
chaser, and  would  tend  to  promote  fraudulent  dealing.  See 
Copeland  v.  Mercantile  Ins.  Co.,  6  Pick.  (Mass.)  204  ;  Barker  v. 
Mar.  Ins.  Co.,  2  Mason,  369.  But  see  Scott  v.  Mann,  36  Tex. 
157 ;  ante,  246. 

ARTICLE  III. 

DUTIES    AND    LIABILITIES   OF   AUCTIONEERS. 

Section  1.  As  to  care  of  property.  An  auctioneer  is  bound  to 
take  due  care  of  property  sent  to  him  for  sale,  the  same  as  he 
would  of  his  own  goods.  He  assumes  the  responsibilities  and 
duties  of  a  bailee,  for  hire  of  labor  and  services,  and  must  exer- 
cise ordinary  diligence  and  skill.  He  is  not  liable  for  unavoid- 
able accidents.  Malthy  v.  Christie,  1  Esp.  340.  An  auctioneer 
has  no  right  to  place  goods,  intended  for  sale,  in  the  public 
streets,  because  there  is  no  necessity  therefor  ;  and  if  he  does, 


480  AUCTIONEERS. 

he  is  indictable  for  a  nuisance.  CommonweaWh  v.  Passmore,  1 
Serg.  &  R.  (Penn.)  219. 

§  2.  To  ol)ey  instructions.  An  auctioneer  is  bound  strictly  to 
observe  tlie  instructions  of  his  principal,  and  if  he  deviate  from 
such  instructions,  he  is  liable  in  damages,  like  other  agents. 
Wilkinson  v.  Campbell,  1  Bay  (S.  C),  169  ;  Wolfe  v.  Luyster, 
1  Hall  (N.  Y.),  146 ;  Steele  v.  EllmaJcer,  11  Serg.  &  R.  (Penn.) 
86  ;  ante,  242,  243.  If  the  price  is  limited,  his  duty  is  to  set  the 
goods  up  at  that  price.  If  they  will  not  sell  at  the  price  limited, 
he  must  not  sell.  And  if  the  goods  perish  because  they  cannot 
be  sold  at  that  price,  the  loss  must  fall  on  the  owner.  Williams 
V.  Poor,  3  Cranch  (C.  C),  221.  And  see  Bush  v.  Cole,  28  N.  Y. 
(1  Tiff.)  261.  In  the  absence  of  special  instructions,  it  is  the  duty 
of  the  auctioneer  to  follow  the  common  custom  in  the  business. 
See  Johnston  v.  Usborne,  11  Ad.  &  El.  549  ;  ante,  243. 

§  3.  Selling  for  undiscovered  principal.  An  auctioneer,  acting 
as  the  agent  of  another  in  the  sale  of  property,  is  personally 
responsible  as  vendor,  unless  at  the  time  of  the  sale  he  disclose 
the  name  of  his  principal.  His  general  employment  as  auc- 
tioneer is  not  per  se  notice  that  he  acts  as  agent.  Mills  v.  Hunt, 
20  Wend.  431 ;  Schell  v.  Stephens,  50  Mo.  375  ;  ante,  258,  259. 
So,  a  bidder  may  repudiate  a  purchase  of  goods  knocked  down 
to  him,  if  the  auctioneer  refuses  to  disclose  his  principal. 
Thomas  v.  Kerr,  3  Bush  (Ky.),  619. 

§  4.  Diligence  and  honesty.  Auctioneers  assume  upon  them- 
selves an  obligation  to  their  employers  to  perform  the  service 
confided  to  them,  with  ordinary  care  and  skill,  and  they  become 
responsible  in  default  of  either.  In  other  words,  they  are  respon- 
sible for  loss  arising  from  gross  negligence  or  ignorance.  Beyond 
this,  their  duties  or  liabilities  do  not  extend.    Hicks  v.  Minturn, 

19  Wend.  550.  The  degree  of  care  and  skill  required  to  be  exer- 
cised by  an  auctioneer  is  such  as  is  ordinarily  possessed  by  men 
of  his  profession  or  business  in  the  same  neighborhood  or  place. 
lb.;  Denew  v.  Damrell,  3  Camp.  452. 

§  5.  Sale  of  stolen  goods.  An  auctioneer  who  innocently  sells 
stolen  goods,  or  goods  as  the  property  of  one  not  the  owner,  is 
liable  for  the  goods  or  their  value  to  the  real  owner,  in  an  action 
brought  by  the  latter  to  recover  the  value.    Hoffman  v.  Carow, 

20  Wend.  21 ;  S.  C.  affirmed,  22  id.  285  ;  Allen  v.  Brown,  5  Mo. 
323.  Thus,  where  one  hired  a  piano-forte,  and  afterward  bor- 
rowed money  upon  it  from  an  auctioneer,  who  sold  it  by  auction 
and  paid  over  the  proceeds,  it  was  held  that  the  party  from 


AUCTIONEERS.  481 

whom  it  was  hired  could  maiutain  trover  therefor  against  the 
auctioneer.  Chambers  v.  McCormick^  4  N.  Y.  Leg.  Obs.  342. 
It  has,  however,  been  held,  in  an  early  case,  that  if  an  auc- 
tioneer pays  to  his  employer  the  proceeds  of  goods  sold,  with- 
out notice  that  a  third  person  claims  property  in  them,  he  is 
not  afterward  liable  to  such  third  person,  though  he  be  the  real 
owner  of  the  goods.  Jacobs'  Case,  2  Bay  (S.  C),  84.  And 
although  he  be  responsible  to  the  real  owner  in  such  case,  in  the 
first  instance,  yet  he  has  his  remedy  against  the  one  who  em- 
ployed him  to  sell  the  goods.  Adamson  v.  Jarms,  4  Bing.  '6^ ;  S. 
C,  12  Moore,  241.  See  Murray  v.  Mann,  2  Exch.  538;  Steviens 
V.  Legh,  24  Eng.  Law  &  Eq.  210. 

Where  the  persons  present  at  an  auction  sale  were  distrustful 
of  the  title  of  the  reputed  owner  of  the  article  to  be  sold,  and 
the  auctioneer  announced  that  he  "knew  him  well,  and  he  was 
all  right,  and  that  he  (the  auctioneer)  would  warrant  that  his 
title  was  good,"  it  was  held  that  this  amounted  to  a  warranty 
by  the  auctioneer,  upon  which  an  action  might  be  sustained. 
Dent  V.  McGrath,  3  Bush  (Ky.),  174.    See  ante,  256,  257. 

§  6.  Liable  as  a  stakeholder.  It  is  not  unusual  for  an  auc- 
tioneer to  be  made  a  stakeholder ;  and,  as  such,  it  is  his  duty, 
where  he  sells  an  estate  by  public  auction  and  receives  a  deposit 
from  the  purchaser,  to  retain  the  deposit  until  the  sale  is  com- 
plete, and  it  is  ascertained  to  whom  the  money  belongs.  Gray 
v.  Gutteridge,  3  C.  &  P.  40.  If  he  pay  over  the  sum  deposited 
to  the  vendor  before  the  completion  of  the  contract  of  sale,  and 
the  contract  be  rescinded  or  abandoned  on  account  of  the  ven- 
dor's defect  of  title,  he  does  so  in  his  own  wrong,  and  will  be 
liable  to  the  purchaser  for  the  deposit,  in  an  action  for  money 
had  and  received.  Id. ;  Edwards  v.  Hodding,  5  Taunt.  815 ;  S. 
C,  1  Marsh.  377 ;  Burrough  v.  Skinner,  5  Burr.  2639.  And 
the  action  may  be  brought  to  recover  the  deposit,  without 
notice  to  the  auctioneer  that  the  contract  had  been  rescinded  by 
the  parties.  Duncombe  v.  Cafe,  2  M.  &  W.  244.  But  unless 
such  notice  has  been  given,  or  the  repayment  of  the  deposit  has 
been  demanded,  interest  thereon  cannot  be  recovered.  Lee  v. 
Munn,  8  Taunt.  45 ;  S.  C,  1  Moore,  481  ;  Calton  v.  Bragg,  15 
East,  223.  In  an  action  for  the  deposit,  in  which  the  auctioneer 
pays  the  costs,  he  canrot  afterward  recover  these  costs  from  the 
principal,  in  an  action  for  money  had  and  received,  but  must 
declare  specially.    Spurrier  v.  Elderton,  5  Esp.  1. 

Where  a  solicitor,  acting  for  3  vendor,  receives  the  deposit  on 

Vol.  L— 61 


482  AUCTIONEERS. 

the  sale  of  an  estate,  the  law  will  not  imply,  as  in  the  case  of  an 
auctioneer,  that  he  receives  it  as  a  stakeholder.  If  he  professes 
to  receive  it  as  agent  for  the  vendor,  he  is  bound  to  pay  it  over 
to  him  on  demand.  Edgell  v.  Day^  1  H.  &  R.  8  ;  S.  C.,  L.  E..,  1 
C.  P.  80. 

ARTICLE  IV. 

EFFECT  OF   PUFFING  AND  COMBINATIONS. 

Section  1.  In  general.  It  is  a  fraud  upon  honest  bidders  for 
an  owner  of  property  offered  for  sale  at  auction,  or,  in  the  case 
of  a  judicial  sale,  for  creditors  in  whose  behalf  the  sale  is  made, 
to  employ  puffers  or  by-bidders  for  the  purpose  of  increasing 
the  price  by  fictitious  bids  ;  and  a  buyer  whose  bid  immediately 
followed  one  made  by  puffer  cannot  be  compelled  to  complete 
the  contract,  or  he  may  have  it  set  aside  in  equity.  National 
Bank  of  Metropolis  v.  Sprague^  20  N.  J.  Eq.  159 ;  Donaldson 
V.  McRoy,  1  Browne  (Penn.),  346 ;  Morehead  v.  Hunt^  1  Dev. 
Eq.  (N.  C.)  65;  Moncrief  v.  Goldshorough,  4  Harr.  &  M.  (Md.) 
282 ;  Towle  v.  Leamtt,  23  N.  H.  360  ;  Staines  v.  Shore,  16  Penn. 
St.  200;  Pennoclz's  Appeal,  14  id.  446;  Green  v.  Barker  stock,  14 
C.  B.  (N.  S.)  204.  It  is  his  duty,  however,  to  return  the  property 
purchased  when  the  fraud  is  discovered  {McDowell  v.  Simms, 
Busb.  Eq.  [N.  C]  130  ;  Staines  v.  Shore,  16  Penn.  St.  200) ;  but 
if  not  discovered  till  too  late  to  do  so,  his  defense  is  good  with- 
out it.  Id.  The  employment  of  a  puffer  vitiates  the  sale,  even 
though  the  property  brought  no  more  than  its  general  value  (id.); 
and  especially  where  all  the  bidders  except  the  purchaser  are 
by-bidders,  secretly  employed  by  the  seller,  and  the  purchaser's 
judgment  is  improperly  influenced  by  their  bids.     Veazie  v. 

Williams,  3  Story,  611. 

Combinations  to  prevent  bidding  are  likewise  held,  both  at 
law  and  equity,  to  be  fraudulent.  Towle  v.  Leamtt,  23  N.  H. 
360,  372 ;  Doolin  v.  Ward,  6  Johns.  194.  And  agreements, 
whereby  parties  engage  not  to  bid  against  e^ch  other  at  a  public 
auction,  are  held  void,  as  against  public  policy  {National  Bank 
V.  Sprague,  20  N.  J.  Eq.  159 ;  Wooten  v.  Hinkle,  20  Mo.  290 ; 
Loyd  V.  Malone,  23  111.  43) ;  and  no  subsequent  acts  of  the  par- 
ties under  such  an  agreement  will  have  the  effect  of  ratifying  or 
confirming  it,  or  estop  the  parties  from  asserting  its  invalidity. 

Wheeler  v.  Wheeler,  5  Lans.  (JST.  Y.)  355.    But  the  mere  attempt 
of  a  purchaser  of  property  at  an  auction  to  prevent  another 


AUCTIONEERS.  483 

person  from  bidding  for  it,  will  not  render  the  pnrchase  invalid  ; 
to  have  this  effect,  the  attempt  must  have  been  successful. 
Haynes  v.  CrutcTifield,  7  Ala.  189.  Nor  is  it  unlawful  for  per- 
sons who  wish  to  make  a  joint  purchase  of  property  about  to  be 
offered  at  auction,  to  agree  together  that  they  will  authorize  one 
person  to  bid  for  it,  upon  their  joint  account.  National  Bank 
V.  Sprague,  20  N.  J.  Eq.  159.  Though  it  is  otherwise  as  to  an 
agreement  between  two  bidders  for  a  public  contract,  that,  if  the 
contract  should  be  awarded  to  either,  both  should  share  equally 
in  the  profits,  if  any,  and  contribute  equally  to  the  losses.  Such 
an  agreement  is  void.  AtcTieson  v.  Mallon,  43  N.  Y.  (4  Hand) 
147 ;  S.  C,  3  Am.  Rep.  678.  And  see  Loyd  v.  Malone,  23  111.  43  ; 
Worton  V.  Hinkle,  20  Mo.  290.  So,  an  agreement  to  pay  a  mail 
contractor  for  repudiating  his  contract  is  void.  Weld  v.  Lan- 
caster, 56  Me.  453.     And  see  Sharp  v.  WrigJit,  35  Barb.  236. 

Where  one  bids  for  another  at  an  auction,  but  does  not  at  the 
time,  nor  on  the  day  of  sale,  disclose  the  name  of  his  principal 
to  the  owner  or  auctioneer,  he  is  liable  as  purchaser  {McComh 
V.  Wright,  4  Johns.  Ch.  659) ;  and  if  one  stands  by  and  permits 
his  name  to  be  put  down  as  purchaser,  by  the  direction  of  the 
bidder,  he  will  be  bound  as  purchaser,  though  the  bidding  was 
without  his  authority.  Jenkins  v.  Hogg,  2  Mill.  Const.  (S.  C.) 
821. 

§  2.  Illusory  bids,  when  allowed.  The  general  rule,  that  the 
employment  of  puffers,  or  by-bidders,  will  avoid  an  auction 
sale,  has  its  exceptions.  Thus,  the  sale  will  not  be  set  aside 
where  the  purchaser,  after  knowledge  of  the  facts,  took  posses- 
sion and  allowed  a  confirmation  of  the  sale.  Backenstoss  v. 
Stahler,  33  Penn.  St.  251.  So,  the  sale  will  be  permitted  to 
stand,  where  the  price  was  not  exorbitant,  and  there  had  been  a 
long  acquiescence  by  the  purchaser.  Latham  v.  Morroio,  6  B. 
Monr.  (Ky.)  630.  And  if  persons  be  employed  to  bid  up  to  a 
certain  sum,  in  order  to  avoid  a  sacrifice  of  the  property,  and 
the  price  is  afterward  raised  by  real  bidders,  the  sale  will  be 
valid.  Steele  v.  Ellmaker,  11  Serg.  &  R.  (Penn.)  86 ;  Yeazie  v. 
Williams,  3  Story,  620;  Bramley  v.  Alt,  6  Ves.  619.  It  has 
likewise  been  held  that  to  employ  a  person  to  "  bid  in  "  for  the 
owner,  does  not  necessarily  vitiate  an  auction  sale,  if  the  price  is 
not  intended  to  be  thereby  enhanced  beyond  a  fair  value.  And 
whether  the  by-bidder  is  employed  in  good  faith  to  prevent  a 
sacrifice,  or  simply  to  enhance  the  price  by  a  pretended  compe- 
tition, is  a  question  for  the  jury.    Reynolds  v.  Dechaums,  24' 


484  AUCTIONEERS. 

Tex.  174.  See,  also,  Fox  v.  Wright,  G  Madd.  Ill  ;  Ord  v.  Noel, 
5  id.  440.  If  tliere  be  danger  tliat  the  property  may  be  sacri- 
iiced  for  the  want  of  bidders,  the  owner  is  at  liberty  to  with- 
draw it  before  the  sale  commences,  or  he  may  set  it  up  at  a 
specified  sum,  or  he  may  announce  that  he  reserves  the  right 
to  make  one  bid  himself.  See  Towle  v.  Leavitt,  23  N.  H. 
360.  And  where  an  auction  is  announced  as  intended  to  be 
"  without  reserve,"  the  employment  by  the  vendor  of  a  puffer  to 
bid  for  him,  renders  the  sale  voidable,  and  entitles  the  purchaser 
to  recover  back  his  deposit  from  the  auctioneer.  Tlioruett  v. 
Haines,  15  Mees.  &  W.  367 ;  Meadows  v.  Tanner,  5  Madd.  37. 
See  B'lmvdck  v.  Hallett,  L.  R.,  2Ch.  App.  31;  Qilliat  v.  Ollliat, 
L.  R.,  9  Eq.  60.  To  place  goods  in  the  hands  of  an  auctioneer, 
with  directions  that  he  shall  not  part  with  or  dispose  of  them, 
unless  they  produce  a  specified  sum,  is  not  regarded  as  an  unlaw- 
ful means  of  enhancing  the  price,  nor  an  imposition  on  fair  pur- 
chasers ( Wolfe  V.  Luyster,  1  Hall  [N.  Y.],  146  ;  Hazul  v.  Dun- 
ham, id.  655  ;  Towle  v.  Leamtt,  23  N.  H.  360 ;  Steele  v.  Ellmaker^ 
11  Serg.  &  R.  [Penn.]  86) ;  and  an  action  will  lie  against  the 
auctioneer  for  a  breach  of  such  directions.  lb.  It  has  been  held 
not  fraudulent  for  a  debtor  to  employ  a  person  to  buy  in  his 
property  at  sheriff's  sale,  merely  to  prevent  a  sacrifice.  Lee  v. 
Lee,  19  Mo.  420.  So,  an  agreement  by  an  administrator  or  guard- 
ian to  offer  the  real  estate  of  his  intestate,  or  ward,  for  sale  by 
auction,  and  to  sell  the  same  to  a  particular  individual  for  an 
agreed  price,  provided  no  higher  sum  should  be  bid,  is  valid. 
But  such  an  agreement  to  sell  the  estate  at  a  fixed  price,  without 
regard  to  the  biddings,  is  fraudulent  and  void.  Hunt  v.  Frost, 
4  Cush.  (Mass.)  54. 

In  the  English  courts  of  equity  the  presence  of  one  puffer  was 
allowed,  even  in  sales  "  without  reserve,"  in  order  to  prevent  a 
sacrifice  of  property.  See  Qreen  v.  Baoerstock,  14  C.  B.  (N.  S.) 
204 ;  Mortimer  v.  Bell,  L.  R.,  1  Ch.  App.  10.  But  the  rule  at 
common  law  is  clearly  stated  to  be  that,  upon  a  sale  by  auction 
where  the  highest  bidder  is  to  be  the  purchaser,  the  secret  em- 
ployment of  a  puffer  by  the  vendor  is  a  fraudulent  act.  The 
sale  is  vitiated  by  the  fraud  and  void,  unless  the  vendee,  with 
knowledge  of  the  fact,  has  acted  upon  it  so  as  to  deprive  himself 
of  the  right  to  complain.  Oreen  v.  Bamr stock,  14  C.  B.  (N.  S.) 
204 ;  Warlow  v.  Harrison,  1  El.  &  El.  295 ;  Crowder  v.  Austin, 
3  Bing.  368.  And  now  by  statute  30  and  31  Vict.,  c.  48,  it  is  pro- 
vided that,  "  whenever  a  sale  by  auction  of  land  would  be  invalid 


AUCTIONEERS.  485 

at  law  by  reason  of  tlie  employment  of  a  puffer,  tlie  same  shall 
be  deemed  invalid  in  equity,  as  well  as  at  law."  See  Oilliat  v. 
G'llliat^  L.  R.,  9  Eq.  59.  That  a  sale  at  auction,  under  process  of 
law,  cannot  be  invalidated  for  mere  inadequacy  of  price,  see 
Den  V.  Zeller^  7  N.  J.  L.  (2  Halst.)  153  ;  Limngston  v.  Byrne^  11 
Johns.  555. 

ARTICLE  V. 

BALE,  WHESr  BIlfDIHG. 

Section  1.  In  general.  Every  bidding  at  an  auction  is  nothing 
more  than  an  offer  on  one  side,  which  is  not  binding  on  either 
side  till  it  is  assented  to.  This  assent  on  the  part  of  the  seller  is 
generally  signified  by  knocking  down  the  hammer  (Pa^/Tie  v. 
Oaoe,  3  T.  R.  148) ;  though  any  other  mode  would  be  equally 
binding.  Until  the  hammer  falls,  the  bidder  is  entitled  to  the 
locus  penitenticB ;  or,  in  other  words,  may  retract  his  bid.  lb  • 
Warlow  V.  Harrison,  1  El.  &  El.  295.  And  it  has  been  held  that 
a  bid  may  be  retracted  or  withdrawn  by  implication.  Thus,  if 
the  auctioneer  adjourns  the  sale  of  the  particular  article,  and 
passes  to  something  else,  without  the  express  assent  of  the  bid- 
der, this  is  a  tantamount  to  a  rejection  of  the  preceding  bid, 
which  is  thereby  annulled.  Donaldson  v.  Kerr,  6  Penn.  St.  486. 
See  Jones  v.  Nanney,  6  Eng.  Exch.  (13  Price)  22. 

ARTICLE  VI. 

EFFECT  OF  STATUTE  OF  FRAUDS. 

Section  1.  Auctioneer  agent  of  both  parties.  Until  the  ham- 
mer goes  down,  the  auctioneer  is  exclusively  the  agent  of  the 
vendor.  Warlow  v.  Harrison,  1  El.  &  El.  295.  But  it  is  now 
settled  that  a  sale  at  auction  is  within  the  provisions  of  the 
statute  of  frauds,  and  requires  a  memorandum  in  writing  to 
render  it  binding.  Walker  v.  Constable,  1  Bos.  &  Pul.  306 ; 
Hlnde  v.  Whitehouse,  7  East,  558  ;  Brent  v.  Green,  6  Leigh  (Va.), 
16  ;  Burke  v.  Haley,  7  111.  (2  Gilm.)  614.  This  memorandum  of 
the  sale  and  its  terms,  duly  made,  and  signed  by  the  auctioneer, 
is  sufficient  as  a  memorandum  under  the  statute  of  frauds,  tu 
bind  both  parties  to  the  contract.  And  for  this  purpose  the  auc- 
tioneer is  to  be  considered  the  agent  of  the  purchaser,  as  well  as 
that  of  the  vendor.  McComh  v.  Wright,  4  Johns.  Ch.  659  ;  Mor- 
ton V.  Dean,  13  Mete.  (Mass.)  385  ;  Pike  v.  BalcJi,  38  Me.  302  ; 


4S6  AUCTIONEERS. 

Bird  V.  Boulter,  4  B.  &  Ad.  446 ;  Gill  v.  Hewett,  7  Bush  (Ky.), 
10 ;  Walker  v.  Herring,  21  Gratt.  (Va.)  678.  Though  it  is  held 
that  he  caimot  bind  the  purchaser,  unless  the  memorandum  be 
made  on  the  day  of  the  sale  {Mews  v.  Carr,  1.  H.  &  N.  484 ; 
Horlon  v.  McCarty,  53  Me.  894) ;  and  whether  he  be  the  agent 
of  both  parties  ■will  depend  upon  the  facts  of  the  particular 
case.  Barilett  v.  Punnell,  4  Ad.  &  El.  792.  The  entry  of  the 
buyer's  name  by  the  auctioneer' s  clerk,  if  made  in  the  presence 
of  the  auctioneer  and  of  the  buyer,  is  a  sufficient  signing  within 
the  statute  of  frauds  {Alna  v.  Plummer,  4  Me.  258 ;  Pope  v. 
Chafee,  14  Eich.  Eq.  [S.  C.)  69 ;  Johnson  v.  Buclc,  35  N.  J.  L. 
338 ;  Bird  v.  Boulter,  4  B.  &  Aid.  443 ;  Harvey  v.  Stevens,  43 
Yt.  653) ;  and  so  of  the  entry  of  a  commissioner  conducting  a 
sale  by  direction  of  a  court  of  equity ;  he  being  regarded  as 
agent  of  both  parties.  Jenkins  v.  Hogg,  2  Mill.  Const.  (S.  C.) 
2S1.  But  if  the  auctioneer  is  himself  the  vendor  and  party  in 
interest,  he  cannot  bind  his  purchaser  by  a  memorandum  of  the 
sale  executed  by  himself.  Bent  v.  Ooih,  9  Gray  (Mass.),  397 ; 
Tull  V.  David,  45  Mo.  444. 

§  2.  Form  of  memorandum  of  sale.  A  general  memorandum 
entered  in  a  book  by  the  auctioneer  at  the  commencement  of  an 
auction  sale,  showing  the  name  of  the  person  on  whose  account 
the  sale  is  made,  the  nature  of  the  property,  the  terms  of  pay- 
ment, referring  to  entries  following  for  the  names  of  purchasers 
and  lots  struck  off  to  eacli,  and  signed  by  the  auctioneer,  or  by 
his  clerk,  under  which  he  enters  the  name  of  each  purchaser, 
the  description  of  the  goods  sold,  and  tLe  price,  is  a  sufficient 
memorandum  of  each  sale  within  the  statute  of  frauds.  Price 
V.  Durin,  56  Barb.  647.  Nor  is  it  necessary  that  such  general 
memorandum  should  be  made  as  often  as  a  parcel  of  goods  is 
sold ;  even  though  the  sale  is  adjourned  to  and  continues  on  the 
second  day  without  any  repetition  of  the  memorandum.  Id. 
And  see  Hart  v.  Woods,  7  Blackf.  (Ind.)  568 ;  Cherry  v.  Long, 
Phill.  L.  (N.  C.)  466  ;  Cathcart  v.  Keirnaghan,  5  Strobh.  (S.  C.) 
129  ;  Pope  v.  (Jhafee,  14  Rich.  Eq.  (S.  C.)  69.  And  to  satisfy  the 
statute,  it  is  sufficient  that  the  terms  of  the  bargain  may  be 
gathered  from  two  or  more  separate  papers,  if  the  signed  mumo- 
rrindum  contains  such  reference  to  the  other  papers  as  to  make 
the  latter  part  of  the  former ;  but  the  connection  between  the 
signed  and  unsigned  papers  cannot  be  made  by  parol  evidence 
that  they  were  intended  by  the  parties  to  be  read  together,  or  of 
facts  and  circumstances  from   which  such  intention  may  be 


AUCTIONEERS.  487 

inferred.  Jofmson  v.  Buck,  35  N.  J.  L.  338 ;  Morton  y.  Bean, 
13  Mete.  (Mass.)  385  ;  Horton  v.  McGariy,  53  Me.  394.  To  bind 
a  purchaser  of  real  estate  sold  at  auction,  a  memorandum,  con- 
taining all  the  essential  terms  of  the  contract,  must  be  made  and 
signed  by  the  auctioneer  at  the  time  of  the  sale  and  before  the 
termination  of  the  proceedings.  Id. ;  Smith  v.  Arnold,  5  Mason, 
414 ;  Mews  v.  Carr,  38  Eng.  L.  &  Eq.  358.  But  where  the  auc- 
tioneer makes  a  memorandum  in  pencil  at  the  time  of  sale, 
which  is,  as  early  as  practicable,  entered  upon  his  books,  the 
latter  is  regarded  as  the  original  entr}^  Episcopal  Cliurch  v. 
Wiley,  Riley's  Ch.  (S.  C.)  156  ;  S.  C,  2  Hill,  583. 

ARTICLE  VII. 

COMPENSATION   OF  AUCTIONEER. 

Section  1.  In  general.  As  the  agent  of  the  vendor,  the  auc- 
tioneer has  a  claim  for  compensation,  usually  in  the  form  of  a 
commission,  which,  in  the  absence  of  any  special  agreement,  is 
determined  by  common  usage.  Robinson  v.  New  York  Ins.  Co., 
2  Caines,  357;  Russell  v.  Miner,  61  Barb.  534;  S.  C,  5  Lans. 
637 ;  Clark  v.  SmytJiies,  2  F.  &  F.  83  ;  Bower  v.  Joties,  8  Bing. 
65.  He  is  also  entitled  to  be  reimbursed  for  expenses  and 
advances  {Rogers  v.  Kneeland,  10  Wend.  218 ;  Girardey  v. 
Stone,  24  La.  Ann.  286  ;  Russell  v.  Miner,  61  Barb.  534  ;  S.  C, 
5  Lans.  537;  Powell  v.  Trustees  of  NewhurgJi,  19  Johns.  284), 
and  also  for  damages  arising  out  of  the  agency ;  provided  his 
conduct  is  blameless  in  relation  thereto.  Allaire  v.  Ouland,  2 
Johns.  Cas.  (N.  Y.)  54;  Capp  v.  Topham,  6  East,  392;  Cov- 
entry  v.  Barton,  17  Johns.  142.  See  Leeds  v.  Bowen,  1  Rob. 
(N.  y.)  10. 

An  auctioneer  employed  to  sell  property  at  a  certain  commis- 
sion or  so  much  as  he  shall  sell  is  not  entitled  to  the  commission 
on  a  bid  not  complied  with.  Cochrane  v.  Johnson,  2  McCord 
(S.  C),  21 ;  Girardey  v.  Stone,  24  La.  Ann.  286. 

§  2.  Loss  by  negligence  or  fraud.  Where  an  auctioneer, 
employed  to  sell  goods  or  an  estate,  is  guilty  of  negligence  or 
fraud,  whereby  the  sale  becomes  nugatory,  he  is  not  entitled  to 
recover  any  compensation  for  his  services  from  the  vendor. 
Deneio  v.  Daverell,  3  Camp.  451 ;  and  see  Brown  v.  Staton,  2 
Chit.  353 ;  Mainprice  v.  Wcstley,  6  B.  &  S.  420. 

§  3,  Lien.  An  auctioneer  has  a  special  property  in  the  goods 
in  his  hands  for  sale  {Belter  v.  Block,  19  Ark.  566),  and  a  lien 


488  AUCTIONEERS. 

tliereon,  and  on  the  proceeds  of  sale,  for  charges  of  sale,  com- 
missions and  auction  duty.  Hiilse  v.  Yoimg^  16  Johns.  1 ; 
Williams  v.  M'llllngton,  1  H.  Bl.  81.  But  this  lien  may  be  lost 
by  a  delivery  of  the  goods  before  the  price  is  paid.  Blinn  v. 
Torre,  Riley's  L.  (S.  C),  153. 

ARTICLE  VIII. 

ACTIONS   FOUNDED   UPON   AUCTION  SALE. 

Section  1 .  Auctioneer  may  sue.  See  ante,  478,  art.  2,  §  6.  He  may 
personally  sue  his  principal  for  damages  or  expenses,  or  for  his 
commission ;  and  he  may  sue  the  purchaser  in  .his  own  name  for 
the  price  of  goods  sold  by  him,  whereon  he  holds  a  lien  for  his 
charges.  Hulse  v.  Young,  16  Johns.  1 ;  Robinson  v.  Rutter,  4 
El.  &  B.  954 ;  Flanigan  v.  Orull,  63  111.  352.  But  this  authority 
to  sue,  in  the  latter  case,  is  subject  to  the  right  of  the  principal 
to  take  the  collection  into  his  own  hands,  and  sue  in  his  own 
name.  Girard  v.  Taggart,  5  Serg.  &  R.  (Penn.)  19.  And  where 
the  conditions  of  an  auction  sale  expressly  stipulate  that  an 
auctioneer's  fees,  of  a  special  sum,  shall  be  paid  to  the  auctioneer 
on  the  day  of  sale,  he  may  sue  the  purchaser  in  his  own  name 
to  recover  such  sum ;  but  his  right  to  recover  will  depend  on  the 
validity  of  the  contract  to  purchase,  as  between  buyer  and 
seller.  Johnson  v.  Buck,  35  N.  J.  L.  338.  And  the  purchaser 
may  set  off,  in  an  action  against  him  by  the  auctioneer,  a  debt 
due  by  the  owner  to  him.  Blinn  v.  Torre,  Riley's  L.  (S.  C),  153. 

In  an  action  against  an  auctioneer  upon  a  contract  of  sale, 
where  the  defense  is  that  the  contract  was  by  parol,  and  so  void 
tinder  the  statute  of  frauds,  the  fact  that  the  law  imposes  upon 
auctioneers  the  duty  of  making  memoranda  of  sales  made  by 
them,  and  the  presumptions  in  favor  of  the  performance  of 
official  duty  cannot  stand  for  proof  that  there  was  a  written 
contract  of  sale.    Baltzen  v.  Nicolay,  63  N.  Y.  (8  Sick.)  467. 

%  2.  Yendor  liable  for  auctioneer's  statements.  The  verbal 
declarations  of  an  auctioneer  at  the  time  of  the  sale  are  admis- 
sible as  evidence  against  the  principal,  and  will  bind  him ; 
unless  they  contradict  the  printed  conditions  of  sale,  in  which 
case  they  are  not  binding.  Gunnis  v.  Erhart,  1  U.  Bl.  289 ; 
Powell  V.  Edmunds,  12  East,  6.     See  ante,  ^11, 478,  art.  2,  §§  1,  3. 


AUDITA  QUERELA.  489 

CHAPTER  XX. 

AUDITA  QUERELA. 
ARTICLE  I. 

NATURE  OF  THE   REMEDY. 

Section  1.  lu  generaL  The  proceeding  by  audita  querela  is 
said  to  have  commenced  about  the  tenth  year  of  Edward  III. 
See  Toung  v.  Collet,  T.  Raym.  89;  S.  C,  2  Saund.  148,  h.;  and 
in  Sutton  v.  Bishop,  4  Burr.  2283,  2286,  the  court  speaks  of  it 
as  an  "  old  legal  remedy,  long  disused  and  expensive  " ;  and  the 
instances  of  its  use  in  modern  times  are  comparatively  rare.  It 
is,  however,  neither  an  obsolete  nor  difficult  proceeding.  Baker 
V.  Ridgway,  2  Bing.  41,  47. 

An  audita  querela  is  a  writ  to  be  delivered  against  an  unjust 
judgment  or  execution,  by  setting  them  aside  for  some  injustice 
of  the  party  that  obtained  them,  which  could  not  be  pleaded  in 
bar  to  the  action.  Bac.  Abr.,  tit.  Audita  Querela ;  2  Broom  & 
Had.  Com.  (Wait's  ed.)  270.  It  is  a  remedial  process,  which 
bears  solely  on  the  wrongful  acts  of  the  opposite  party,  and  not 
upon  the  erroneous  judgments  or  acts  of  the  court.  Lomjoy  v. 
Webber,  10  Mass.  101 ;  Brackett  v.  Winslow,  17  id.  159 ;  Little 
V.  Cook,  1  Aik.  (Vt.)  363.  It  is  a  proceeding  of  common  right, 
and  ea?  debito  justiticB,  and  need  not  be  moved  for.  Nathan  v. 
Giles,  5  Taunt.  558  ;  S.  C,  1  Marsh.  226.  But  see  Waddington 
V.  Vredenbergh,  2  Johns.  Cas.  (N.  Y.)  227.  The  writ,  though 
authorized  by  statute  in  some  cases,  is  derived  from  the  common 
law,  and  is  governed  by  the  rules  of  the  common  law  as  to  mis- 
joinder, and  parties  and  causes  of  action,  and  as  to  its  proceed- 
ings, mode  of  trial,  and  the  rendition  and  effect  of  final  judgment. 
Johnson  v.  Plimpton,  30  Vt.  420  ;  Brackett  v.  Winslow,  1 7  M  ass. 
153 ;  and  see  Poultney  v.  Treasurer  of  State,  25  id.  168.  it  is 
directed  to  the  court  in  which  the  judgment  was  rendered,  and 
where  the  record  remains.  Id. 

§  2.  Where  it  will  lie.  It  has  been  said  that  the  remedy  by 
audita  querela  did  not  lie  where  there  was  any  other  remedy  at 
law,  either  by  plea  or  otherwise.  Toung  v.  Collet,  T.  Rayin.  89  ; 
S.  C,  2  Saund.  148,  b.    But  it  has  been  held  in  a  number  of 

Vol.  L  — 62 


490  AUDITA  QUERELA. 

American  cases  that,  by  the  common  law,  the  writ  lies,  although 
another  remedy  may  exist.  Thus,  if  one  be  taken  iu  execution 
after  the  judgment  has  been  satished,  audita  querela  is  a  proper 
remedy,  though  trespass  would  lie  against  the  creditoi' ;  and  so, 
if  after  commitment  he  pay  the  judgment,  and  still  be  detained 
by  order  of  the  creditor,  though  he  might  be  relieved  by  habeas 
corjpus.  Brackett  v.  Winslow^  17  Mass.  158.  And  see  Lovejoy 
V.  Webber,  10  id.  101 ;  Folan  v.  Folan,  59  Me.  566,  668  ;  Saioyer 
V.  Yilaa^  19  Vt.  43.  In  order  to  maintain  the  action,  the  party 
must  have  been  injured,  or  be  in  danger  of  injury.  Bryant  v. 
Johnson,  24  Me.  304.  It  lies  generally  for  any  matters  which 
work  a  discharge  occurring  after  judgment  entered ;  as  where  a 
party  obtains  a  discharge  under  the  insolvent  act,  after  the  judg- 
ment. Petit  V.  Seaman,  2  Root  (Conn.),  178;  Baiter  v.  Judges, 
etc.,  4  Johns.  191 ;  Commonwealth  v.  Whitney,  10  Pick.  (Mass.) 
439 ;  see,  also,  Parker  v.  Jones,  5  Jones'  Eq.  (N.  C.)  276.  And 
for  matters  occurring  before  judgment,  which  the  defendant 
could  not  plead  through  w^ant  of  notice,  or  through  collusion  or 
fi-aud  of  the  plaintifi".  War  dell  v.  Eden,  2  Johns.  Cas.  (N.  Y.) 
258 ;  Johnson  v.  Haroey,  4  Mass.  485 ;  SmocJc  v.  Dade,  6  Rand. 
(Va.)  639 ;  Dingman  v.  Myers,  13  Grray  (Mass.),  2  ;  Folan  v. 
Folan,  69  Me.  666.  It  is  the  proper  remedy  to  set  aside  a  judg- 
ment from  which  an  appeal  was  improperly  refused  {Edtoards 
V.  Osgood,  33  Vt.  224) ;  or  to  obtain  relief  from  an  execution 
issued  for  too  large  an  amount  by  a  mistake  of  the  clerk  {Stone 
V.  Chamberlain,  7  Gray  [Mass.],  206) ;  or  to  set  aside  a  levy  of 
execution  on  real  estate  when  the  officer  has  made  a  false  return 
of  the  aj)praisal.  Hopkins  v.  Hayward,  34  Vt.  474.  It  is  also 
the  proper  remedy  for  one  whose  lands  are  jointly  liable  with 
those  of  others,  for  the  purpose  of  obtaining  contribution,  and 
to  satisfy  the  judgment  {Wilso7iM.  Watson,  Pet.  [C.  C]  269); 
and  where  two  suits  are  brought  at  the  same  time,  for  the  same 
cause  of  action,  and  proceed,  pari  passu,  to  judgment  and 
execution,  a  satisfaction  of  either  judgment  may  be  shown  upon 
audita  querela,  in  discharge  of  the  other.  Bowne  v.  Joy,  9 
Johns.  221.  Where  more  costs  were  allowed  by  a  justice  of  the 
peace  than  were  warranted  by  statute,  his  judgment  and  execu- 
tion were  set  aside  by  this  writ  {Weed  v.  Nutting,  Brayt.  [Vt.] 
28);  and  so,  where  judgment  was  rendered  by  a  justice  of  the 
peace  against  an  infant  who  did  not  defend  by  guaidian.  Judd 
v.  Doioning,  id.  27;  sm^,  also,  Lincoln  v^  Flint,  18  Vt.  247.  The 
writ  will  also  lie  to  set  aside  an  execution  wrongful!}'-  issued 


AUDITA  QUERELA.  491 

against  the  body  of  the  execution  debtor  {Sawyer  v.  Vilas,  19 
id.  43) ;  or  to  vacate  a  judgment  rendered  by  a  justice  of  the 
peace  in  an  action  of  slander  {Ball  v.  Sleeper,  23  id.  573) ;  and 
where  a  judgment  of  a  justice  of  the  peace  had  been  obtained 
without  notice,  the  defendant  being  out  of  the  State  at  thy  time 
of  commencing  the  suit,  and  the  plaintiff  did  not  comply  with 
the  requisitions  of  the  justices'  act,  relief  was  obtained  by  this 
writ.  Marmn  v.  Wllkins,  1  Aik.  (Vt.)  107;  and  see  Eastman  v. 
Waterman,  26  Vt.  494;  Dingman  v.  Myers,  13  Gray  (Mass.),  1. 

§  3.  When  it  does  not  lie.  The  writ  of  audita  querela  being  a 
remedial  process,  "for  some  injustice  of  th.^ party, "^"^  does  not  lie 
upon  erroneous  acts  of  the  court  {Looejoy  v.  Webber,  10  Mass. 
101 ;  Little  v.  Cooli,  1  Aik.  [Vt.]  363;  BrackeU  v.  Winslow,  17 
Mass.  169) ;  nor  for  any  matter  which  might  have  been,  or  which 
may  be,  taken  advantage  of  by  a  writ  of  error.  Weeks  v,  Law- 
rence, 1  Vt.  433 ;  and  see  Amidon  v.  Ai/cin,  28  id.  440 ;  ScJcool 
District  v.  Mood,  27  id.  214.  So,  it  is  a  settled  principle,  that 
where  a  party  has  had  a  legal  opportunity  of  defense,  or  the 
injury  of  which  he  complains  is  to  be  attributed  to  his  own  neg- 
lect, he  cannot  be  relieved  by  an  audita  querela.  Staniford  v. 
Barry,  1  Aik.  (Vt.)  321 ;  Faxon  v.  Baxter,  11  Gush.  (Mass.)  35 ; 
Wliite  V.  Clapp,  8  Allen  (Mass.),  283;  Griswold  v,  Rutland,  23 
Vt.  324. 

The  writ  does  not  lie  to  correct  an  erroneous  taxation  of  costs 
{Glough  V.  Brown,  38  Vt.  179;  Goodrich  v.  Willard,  11  Gray 
[Mass.],  380);  nor  to  set  aside  an  execution  issued  in  pursuance 
of  a  decree  of  the  court  of  chancery  {Garfield  v.  University  of 
Vermont,  10  Vt.  536) ;  nor  to  prevent  the  enforcement  of  a  judg- 
ment for  nominal  damages  and  costs,  made  after  an  arbitration 
in  imis  wherein  the  award  did  not  purport  to  dispose  ot  the 
pending  suit.  Merriti  v.  Marshall,  100  Mass.  244.  So,  it  has 
been  held  that  a  judgment  debtor,  who  is  arrested  on  execution, 
and  voluntarily  permitted  by  the  officer  to  escape,  and  is  after- 
wui'd  arrested  by  the  officer,  and  committed  to  jail  on  the  same 
execution,  cannot  maintain  a  writ  of  audita  querela  against  the 
officer  to  recover  damages  for  the  false  imprisonment.  Cojjln  v. 
Euoer,  5  Mete.  (Mass.)  228.  And  a  feoffee,  or  purchaser  of  Ihuds, 
or  part  of  lands  subject  to  a  judgment,  cannot  have  an  audita 
querela,  quia  timet,  against  the  lands,  or  tlia.t  part  of  thera  of 
which  he  is  feoffee  or  purchaser.  Waddington  v.  Vredenhergh, 
2  Johns.  Gas.  (N.  Y.)  227. 


492  AUDITA  QUERELA. 

§  4.  Procedure,  etc.  Tlie  proceeding  by  audita  querela  is  a 
regular  suit,  with  its  usual  incidents,  issues  of  law  and  fact,  trial, 
judgment  and  error  {Brooks  v.  Hunt,  17  Johns.  484,  486),  and  in 
which  damages  may  be  recovered  if  execution  was  issued  im- 
properly. Brooke's  Abr.,  Damages,  38.  So,  it  is  said  to  be  in 
the  nature  of  an  equitable  suit,  in  which  the  equitable  rights  of 
the  parties  will  be  regarded.  Lonejoy  v.  Webher,  10  Mass.  103 ; 
Waddington  v.  Vredenhergh,  2  Johns.  Cas.  (N.  Y.)  227. 

The  writ  must  be  allowed  on  motion  in  open  court  ( Wadding- 
ion  V.  Vredenbergh^  2  Johns.  Cas.  [N.  Y.]  227) ;  but  see  Natlian 
V.  Giles,  5  Taunt.  558;  S.  C,  1  Marsh.  226.  It  is  not,  however, 
of  itself,  a  stay  of  execution,  but  may  become  so  by  the  order  of 
the  court  ( Waddington  v.Vredenberg7i,  2  Johns.  Cas.  [N.Y.]  227); 
for  which  purpose  the  court  will  look  into  the  grounds  on  which 
it  is  issued ;  and  if  they  be  such  as  w6uld  not  probably  entitle 
the  defendant  to  the  relief  he  seeks,  although  they  will  not 
refuse  the  audita  querela,  they  will  not  permit  it  to  operate  as  a 
supersedeas  to,  or  stay  the  preceedings  on  the  execution  during 
its  pendency.  Wliite  v.  Clapp,  8  Allen  (Mass.),  283 ;  Hunt  v. 
Brooks,  18  Johns.  5 ;  Turner  v.  Dames,  2  Saund.  148,  e,  note. 
Audita  querela  may  be  brought  in  the  same  court  in  which  the 
record  upon  which  it  is  founded  remains,  or  returnable  in  the 
same  court.  Id.  In  this  writ,  like  a  scire  facias,  the  whole  of 
the  case  is  spread  out,  answering  the  purpose  of  a  declaration. 
A  declaration  may,  however,  be  filed,  and  it  should  recite  the 
whole  record  of  the  recovery,  and  show  a  sufficient  gra-camen, 
or  cause  of  complaint.  Oalces  v.  School  District,  33  Vt.  156. 
The  proper  plea  is,  not  guilty.  Lovejoy  v.  Webber,  10  Mass.  103 ; 
Little  V.  CooTc,  1  Aik.  (Vt.)  363 ;  Eddy  v.  Cochrane,  id.  359. 

All  the  parties  aggrieved  are  entitled  to  the  writ,  and  the 
parties  to  the  judgment  and  execution  sought  to  be  vacated,  or 
their  legal  representatives,  must  be  made  parties  to  such  writ. 
Oleason  v.  Peck,  12  Vt.  56 ;  Herrick  v.  Orange  County  Bank, 
27  id.  534  ;  Melton  v.  Howard,  8  Miss.  (7  How.)  103.  And  if  a 
judgment  against  several  persons  is  vacated  as  to  one,  upon 
audita  querela,  it  must  be  vacated  as  to  all.  Starbird  v.  Moore, 
21  Vt:  529. 

§5.  Relief  upon  motion.  The  indulgence  which,  in  modern 
times,  has  been  shown  by  courts  of  law  in  granting  a  summary 
relief  upon  motion  in  most  cases  of  evident  oppression,  for  which 
the  only  remedy  formerly  was  by  audita  querela,  has  occasioned 
the  latter  remedy  to  be  seldom  resorted  to  ;  the  remedy  by  motion 


AUDITA  QUERELA.  493 

being  "more  summary,  easy  and  less  expensive."  See  Young 
V.  Colletf,  T.  Raym.  89 ;  Baker  v.  Judges,  etc.,  4  Johns.  191 ; 
McDonald  v.  Falvey,  18  Wis.  571 ;  Chambers  v.  Neal,  13  B. 
Monr.  (Ky.)  256;  Huston  v.  Ditto,  20  Md.  305 ;  Kendall  v.  Hodg- 
ins,  7  Abb.  (N.  Y.)  309 ;  S.  C,  1  Bosw.  659.  In  some  of  the 
States,  as  Virginia,  Smock  v.  Dade,  5  Rand.  639 ;  South  Caro- 
lina, Longworth  v.  Screven,  2  Hill,  298,  and  Tennessee,  Marsh 
V.  Haywood,  6  Humph.  (Tenn.)  210,  the  summary  remedy,  by 
motion,  has  wholly  superseded  the  ancient  remedy.  In  Massa- 
chusetts and  Vermont  the  remedy  by  audita  querela  is  regulated 
by  statute.  Brackett  v.  Winslow,  17  Mass.  159 ;  Stanisford  v. 
Barry,  1  Aik.  (Vt.)  321;  Johnson  v.  Plimpton,  30  Vt.  420; 
Essex  Mining  Company  v.  Bullard,  43  id.  238.  As  to  the 
remedy  in  Pennsylvania,  see  Witherow  v.  Keller,  11  Serg.  &  R. 
274 ;  Commonwealth  v.  Berger,  8  Phil.  (Pa.)  237 ;  Michigan,  see 
Hicks  V.  Murphy,  Walk.  (Mich.)  66. 


494  BAILMENTS. 

CHAPTER  XXI. 

BAILMENTS. 

TITLE  I. 

OF  BAILMENTS  GENERALLY. 

ARTICLE  I. 

NATURE   AND   DEFINITION. 

Section  1,  In  generaL  In  commercial  States  or  communities 
the  law  of  bailments  must  always  hold  a  prominent  place,  since 
there  is  a  constant  practice  of  borrowing,  lending,  hiring  or 
keeping  of  chattels,  or  carrying  or  working  upon  them  for 
another.  All  such  acts  are  included  in  the  term  "bailment," 
which  is  derived  from  the  French  word  bailler,  to  de^ver. 

Whatever  is  delivered  by  the  owner  to  any  other  person,  for 
any  of  the  purposes  above  mentioned,  is  bailed  to  him,  and  the 
law  which  determines  the  rights  and  duties  of  the  parties  in  rela- 
tion to  the  property  and  to  each  other,  is  the  law  of  bailments. 
A  bailor  is  the  party  who  delivers  chattels  to  another  for  some 
purpose,  and  upon  a  contract  express  or  implied.  A  bailee  is  a 
party  to  whom  chattels  are  delivered  for  some  purpose,  and  upon 
a  contract  express  or  implied.  A  bailee  is  always  responsible 
for  the  property  delivered  to  him ;  but  the  degree  and  measure 
of  his  responsibility  are  to  be  determined  by  the  nature  of  the 
contract,  and  the  law  applicable  to  the  agreement  made ;  or,  if 
no  express  agreement  is  made,  then  to  such  as  is  implied  by  law, 
from  the  circumstances  of  the  case. 

When  the  various  classes  of  bailments  are  considered,  it  is 
evident  that  there  may  be  very  difierent  obligations  on  the  part 
of  the  bailee,  either  as  to  the  nature  or  the  extent  of  his  responsi- 
bility. If  he  enters  into  an  express  contract  his  liability  may  be 
greater  or  less  than  that  which  would  be  implied  by  the  law  in 
the  absence  of  an  express  agreement.  But,  in  most  of  the  cases 
in  which  legal  questions  arise,  there  is  no  express  agreement 
upon  the  subject ;  and  the  only  point  for  consideration  is  what 
are  the  rights  of  the  parties  under  the  circumstances  of  the  par- 
ticular case. 


BAILMENTS.  495 

ARTICLE  III. 

OF  THE  VARIOUS  KINDS  OF  BAILMENTS. 

Section  1.  In  general.  Bailments  are  usually  distributed  into 
three  general  classes  or  kinds.  The  first  is  where  the  trust  or 
bailment  is  for  the  exclusive  benefit  of  the  bailor.  The  second 
is  where  the  trust  or  bailment  is  for  the  exclusive  benefit  of  the 
bailee.  The  third  is  where  the  trust  or  bailment  is  for  the  bene- 
fit of  both  parties.  In  this  general  division  of  the  subject  the 
first  embraces  deposits  and  mandates ;  the  second  gratuitous 
loans  for  use ;  and  the  third  pledges  or  pawns,  and  hiring  and 
letting  to  hire. 

1.  A  DEPOSIT  is  a  simple  or  naked  deposit,  or  delivery  of  chat- 
tels to  a  bailee,  to  be  kept  for  the  bailor  without  any  recompense, 
and  to  be  returned  whenever  the  bailor  requires  it. 

2.  A  MANDATE  is  a  bailment  of  chattels,  by  which  the  manda- 
tory or  bailee  receives  them,  and  agrees  to  do  some  act  about 
them,  or  to  carry  them  without  any  reward. 

3.  A  LOAN  FOR  USE  or  coMMODATUM  is  a  loau  of  chattels  to 
the  bailee,  to  be  used  by  him  temporarily,  or  for  a  certain  time, 
without  any  return  or  compensation  for  such  use  ;  and  it  requires 
the  return  of  the  identical  chattel  lent. 

4.  A  PLEDGE  or  PAWN  is  a  bailment  of  goods  or  chattels  to  a 
creditor  as  a  security  for  some  debt  or  engagement. 

5.  A  HIRING,  which  is  a  bailment  always  for  a  reward  or  com- 
pensation. This  species  of  bailment  may  be  subdivided  into  the 
following:  1.  The  hiring  of  a  thing  for  use.  2.  The  hiring  of 
labor,  care  and  skill.  3.  The  hiring  of  care  and  services  to  be 
performed  or  bestowed  on  the  thing  delivered.  4.  The  hiring  of 
the  carriage  of  goods  from  one  place  to  another. 

These  various  subjects  will  be  fully  treated  of  in  a  subsequent 
part  of  this  work,  under  the  proper  alphabetical  arrangement  of 
titles.  See  Deposit,  Mandate,  Loan  for  Use,  Pledge,  Hiring,  Car- 
riers, Inn-keepers,  etc. 

There  are  some  general  principles  that  are  equally  applicable  in 
all  cases  of  bailment,  and  they  will,  therefore,  be  discussed  briefly 
in  this  preliminary  and  general  chapter  relating  to  the  subject. 

§  2.  General  rules  relating  to  bailments.  Bailments,  like  other 
contracts,  are  governed  by  the  general  principles  of  law  relating 
to  contracts.  And  one  of  the  most  familiar  rules  is,  that  no 
contract  can  be  enforced  unless  founded  upon  a  sufficient  legal 


496  BAILMENTS. 

consideration.  Ante^  70,  90.  If,  therefore,  one  person  promises 
another  that  he  will  take  his  chattels  and  keep  them  without 
reward,  or  that  he  will  do  some  act  about  them,  or  that  he  will 
carry  them  from  one  specified  place  to  another,  without  any 
compensation,  he  will  not  incur  any  legal  liability  by  an  utter 
refusal  to  keep  any  of  these  promises.  A  perfect  answer  to  any 
action  would  be  an  entire  want  of  consideration  for  the  promise. 

On  the  other  hand,  if  such  a  promise  is  made,  without  con- 
sideration, and  the  party  undertakes  the  performance  of  his 
promise,  he  may  incur  a  liability  by  his  misfeasance  in  improp- 
erly doing  the  thing  undertaken,  if  his  misfeasance  caused  an 
injury  to  the  other  party.  Coggs  v.  Bernard,  Ld.  Raym.  909  ; 
S.  C,  2  Smith's  Lead.  Cas.  369  (287),  454  (342),  where  the  Eng- 
lish and  American  cases  are  collected. 

§  3.  What  care  and  diligence  is  required.  The  practical  ques- 
tion which  so  frequently  arises  is,  what  degree  of  care  is  a  bailee 
bound  to  take  of  the  property  bailed  to  him  ?  This  question 
cannot  be  determined  with  entire  precision ;  though  the  law 
recognizes  three  kinds  or  degrees  of  care  as  standards.  First, 
there  is  slight  care,  which  is  that  degree  of  care  that  every  man 
of  common  sense,  though  very  absent  and  inattentive,  applies 
to  his  own  afiairs.  Secondly,  there  is  ordinary  care,  or  that 
degree  of  care  which  every  person  of  common  and  ordinary 
prudence  takes  of  his  own  concerns ;  and  third,  there  is  great 
care,  which  is  that  degree  of  care  that  a  man  remarkably  exact 
and  thoughtful  gives  to  the  securing  of  his  own  property.  There 
are  infinite  shades  of  care  or  diligence,  from  the  slightest 
momentary  thought  to  the  most  vigilant  anxiety;  but  such 
extremes  cannot  be  practically  applied  in  the  ordinary  course  of 
legal  investigations.  Like  the  three  degrees  just  mentioned, 
there  may  be  diligence  in  a  high  degree,  of  a  common  degree,  and 
of  a  slight  degree.  Such  general  rules  may  be  safely  applied 
by  a  jury,  so  as  to  secure  the  just  rights  of  the  litigant  parties. 

§  4.  Effect  of  custom  or  usage.  In  determining  what  consti- 
tutes negligence  on  the  part  of  a  bailee,  it  is  important  to  con- 
sider the  time,  place  and  circumstances  of  the  transaction.  Any 
particular  act  might  be  negligence  if  done  at  one  place,  whUe  it 
would  be  entirely  proper  at  another.  Less  care  is  taken  in 
securing  houses,  barns  and  other  out-buildings  in  quiet,  sparsely- 
settled  situations,  than  is  deemed  prudent  in  large  towns  or 
cities.  In  the  country  a  man  might  turn  his  friend's  horse  out 
in  the  pasture,  or  leave  him  in  an  unlocked  barn,  without  being 


BAILMENTS.  497 

regarded  as  wanting  in  care  and  diligence.  Of  course,  if  thieves 
and  burglars  were  known  to  be  engaged  in  tlieir  nefarious  prac- 
tices in  the  neighborhood,  a  different  rule  would  be  proper. 

The  customs  of  trade  and  the  course  of  business  are  to  be 
considered.  And  if,  in  the  course  of  a  particular  trade,  some 
kinds  of  goods,  such  as  coals,  are  usually  left  on  a  wharf  with- 
out any  guard  or  protection  during  the  night,  and  they  are 
stolen,  the  wharfinger,  or  other  person  having  the  custody,  might 
not  be  responsible  for  the  loss,  although  for  a  like  loss  of  other 
goods,  of  a  different  character,  he  might  be  responsible. 

§  5.  Of  the  kinds  and  degrees  of  negligence.  That  degree  of 
care  which  the  law  requires,  measures  the  degree  of  negligence 
which  makes  the  bailee  responsible  for  the  loss  of  the  thing 
bailed,  or  for  an  injury  done  to  it.  There  are  three  degrees  of 
care,  and  three  corresponding  degrees  of  negligence.  The 
absence  of  slight  care  constitutes  gross  negligence  ;  the  absence 
of  ordinary  care  constitutes  ordinary  negligence  ;  and  the  absence 
of  great  care  constitutes  slight  negligence.  Whenever  a  thing 
bailed  has  been  injured  or  lost,  the  law  relating  to  bailments 
determines  what  degree  of  care  the  bailee  was  bound  to  exercise, 
and  of  what  degree  of  negligence,  if  any,  he  has  been  guilty. 
Where  the  bailment  is  for  the  exclusive  benefit  of  the  bailor, 
but  slight  care  is  required  of  the  bailee,  and  he  is  not  responsi- 
ble except  for  gross  negligence.  Where  the  bailment  is  for  the 
exclusive  benefit  of  the  bailee,  the  greatest  care  is  required  of 
the  bailee,  and  he  is  responsible  for  slight  negligence.  Where 
the  bailment  is  for  the  benefit  of  both  bailor  and  bailee,  ordinary 
care  is  required  of  the  bailee,  and  he  is  responsible  for  ordinary 
negligence. 

§  6.  Fraud  by  bailee.  The  general  rules  of  law  which  hold 
parties  responsible  for  their  frauds,  and  which  prevent  them 
taking  any  advantage  of  their  frauds,  is  as  applicable  to  bail- 
ments as  to  other  contracts  or  business  transactions. 

So  far  is  this  rule  carried  that  it  has  been  frequently  decided 
that  a  bailee  could  not  avoid  the  consequences  of  his  frauds, 
even  by  an  express  contract  exempting  him  from  such  liability. 
Such  a  contract  is  void,  because  against  public  policy  and  com- 
mon honesty.     See  Carriers,  Illegality,  Fraud. 

There  are  several  other  general  rules  relating  to  bailments 
which  might  be  here  discussed,  but  since  they  will  be  presented 
in  connection  with  each  division  of  the  subject,  they  will  be 
there  considered. 

Vol.  I.  —  63 


498  BANKS  AND  BANKING. 

CHAPTER  XXII. 

BANKS  AND  BANKING. 

TITLE  I. 

OP   THE  RIGHTS,  POWERS,  DUTIES   AND  LIABILITIES  OF 
BANKS  AND  BANKERS.    . 

ARTICLE  I. 

GENERAL    PEINCIPLES    EELATING   TO    BANKS    AND    BANKERS. 

Section  1.  Nature  of  their  dealings  in  general.  A  banker  is  a 
dealer  in  capital,  an  intermediate  party  between  the  borrower 
and  lender.  He  borrows  of  one  party  and  lends  to  another,  and 
the  difference  between  the  terms  at  which  he  borrows  and  lends 
is  the  source  and  measure  of  his  profits.  See  1  McCulloch's 
Com.  Die.  86-117 ;  Curtis  v.  Leamtt,  16  N.  Y.  (1  Smith)  9,  167. 
The  principal  attributes  of  a  bank  are  said  to  be  the  right  to 
issue  negotiable  notes,  discount  notes,  and  receive  deposits. 
People  V.  Utica  Ins.  Co.,  15  Johns.  358,  390.  Banks,  in  the 
commercial  sense,  are  of  three  kinds :  1.  Of  deposit ;  2,  of 
discount;  3,  of  circulation.  All,  or  any  two,  of  these  functions 
may  be,  and  frequently  are,  exercised  by  the  same  association  ; 
but  there  are  still  banks  of  deposit,  without  authority  to  make 
discounts  or  issue  a  circulating  medium.  Thus,  the  receiving  of 
deposits  by  a  chartered  company,  and  loaning  or  investing  the 
same  for  the  benefit  of  depositors,  is  a  business  of  banking. 
Bank  for  Savings  v.  The  Collector,  3  Wall.  495. 

A  bank  is  not  bound  to  receive  on  deposit  or  to  keep  the 
funds  of  every  man  who  offers  money  for  that  purpose.  It  may 
select  its  dealers,  and  refuse  such  as  it  pleases  ;  and  for  the  pur- 
poses of  this  selection  the  cashier  appears  to  be  the  proper 
officer.  The  bank  pays  for  its  dealers  who  have  funds  to  their 
credit,  such  bills  and  notes,  accepted  or  drawn  by  them,  as  are 
payable  at  the  bank.  The  latter  circumstance  is  deemed  an 
order  of  the  depositor  for  the  payment  of  the  bill  or  note  out  of 
his  funds  deposited.  But  it  is  only  in  respect  of  its  dealers, 
persons  keeping  an  account  with  the  bank,  that  this  course  of 


BANKS  AND  BANKING.  499 

business  exists  or  can  exist.  Thatcher  v.  Bank  of  State  of  New 
York,  5  Sandf.  (N.  Y.)  121.  See  Barnes  v.  Ontario  Bank,  19 
N.  Y.  (5  Smith)  152  ;  Foster  v.  Mssex  Bank,  17  Mass.  497. 

It  is  tlie  general  rule  that  a  bank  is  bound  by  the  same  obliga- 
tions, moral  and  legal,  when  the  rights  of  third  joarties  are  con- 
cerned, that  apply  to  the  case  of  an  individual,  unless  explicitly 
exempted  by  law.  Lowry  v.  Commercial,  etc.,  Bank,  Taney, 
312. 

§  2.  Eifect  of  usage  upon  the  contracts  and  dealings  with  banks. 
It  is  a  well-settled  principle  in  the  law  relating  to  banks  and 
banking,  that  reasonable  and  established  usages  and  customs  of 
banks  enter  into  and  constitute  a  part  of  contracts  made  with 
them,  and  must  have  due  weight  in  expounding  such  contracts. 
Warren  Bank  v.  Suffolk  Bank,  10  Cush.  (Mass.)  582  ;  Curtis  v. 
Leamtt,  15  N.  Y.  (1  Smith)  9,  168 ;  Hartford  Bank  v.  Stedman, 
3  Conn.  489  ;  Bank  of  Columbia  v.  Magruder,  6  Harr.  &  J.  (Md.) 
180.  But  a  knowledge,  express  or  implied,  of  a  banking  usage 
or  custom,  must  be  brought  home  to  the  party  who  is  to  be 
affected  by  it.  Mills  v.  Bank  of  United  States,  11  Wheat.  431 ; 
Bank  of  Alexandria  v.  Deneale,  2  Crancli  (C.  C),  488 ;  Pierce 
v.  Butler,  14  Mass.  303.  And  it  would  seem  that  a  usage,  in 
order  to  bind,  must  be  a  usage  of  all  the  banks  of  the  place, 
rather  than  that  of  a  particular  bank.  Adams  v.  Otterhack,  15 
How.  (U.  S.)  545.  See  Marine  Bank  of  Chicago  v.  Rushmore, 
28  111.  463.  So,  a  single  case  is  not  sufficient  to  establish  a  gen- 
eral usage  of  a  bank.  Dwoall  v.  Farmers'  Bank,  9  Gill  &  J. 
(Md.)  31 ;  see  ante,  127-130. 

A  custom  of  banks  not  to  correct  mistakes  in  the  receipt  or 
payment  of  money,  unless  discovered  before  the  person  leaves 
the  room,  is  illegal  and  void.  Gallatin  v.  Bradford,  1  Bibb 
(Ky.),  209.  And  a  custom  of  a  bank  to  pay  only  half  of  a  half 
bank  note  is  bad.  Allen  v.  State  Bank,  1  Dev.  &  Bat.  L.  (N. 
C.)  3.  So,  the  rule  and  practice  of  a  bank  to  take  notes  signed 
by  the  promisors,  without  any  distinction  indicating  thereon  who 
is  principal  and  who  surety,  is  not  alone  sufficient  to  enable  it 
to  hold  a  suretj^,  known  by  it  to  be  such,  after  it  has  extended 
the  time  of  payment  beyond  that  specified  in  such  note,  without 
the  consent  of  the  surety,  even  if  the  surety  had  knowledge  of 
such  usage  and  practice.  Lime  Rock  Bank  v.  Mallett,  42  Me. 
349.  But  a  custom  to  make  demand  of  the  maker  of  a  note 
lodged  in  a  bank,  without  presenting  the  note  to  him,  is  good. 
Whitioell  V.  Johnson,  17  Mass.  452  ;  Rdborg  v.  Bank  of  Colum- 


600  BANKS  AND  BANKING. 

&za,  J  Harr.  &  J.  (Md.)  231.  So,  an  established  custom  that 
notice,  etc.,  to  directors  of  a  bank  shall  be  left  on  the  cashier's 
desk,  is  binding  on  the  directors  whose  notes  come  into  the  bank. 
Weld  V.  GorJiam,  10  Mass.  366.  And  it  is  held  that,  when  a 
note  is  made  payable  or  negotiable  at  a  bank,  whose  invariable 
usage  it  is  to  demand  payment  and  give  notice  on  the  four  t?i  day 
of  grace,  the  parties  are  bound  by  that  usage,  whether  they  have 
a  personal  knowledge  of  it  or  not.  Ifllls  v.  Bank  of  the  United 
States,  11  Wheat.  431,  488 ;  and  see  Renner  v.  Bank  of  Colom- 
hia,  9  id.  581.  Although  the  custom  of  a  bank  may  be  proved 
for  the  purpose  of  interpreting  a  contract,  it  is  no  evidence  to 
establish  one  where  an  express  contract  would  be  necessary. 
Harper  v.  Calhoun,  8  Miss.  (7  How.)  203.  Nor  will  usages  of 
banks  be  judicially  noticed,  but  must  be  proved,  or  must  have, 
been  heretofore  proved  and  established  by  courts  of  justice, 
before  they  will  be  recognized  and  applied.  Planters^  Bank  v. 
Farmers',  etc.,  Bank,  8  Gill  &  J.  (Md.)  449.  See  Citizens'  Bank 
V.  Grafflin,  31  Md.  507. 

§  3.  By-laws  of  bank,  force  of.  By-laws,  rules  and  regulations, 
etc.,  of  a  bank,  although  made  under  authority  of  law,  cannot 
affect  the  rights  or  interests  of  third  persons.  Mechanics  and 
Farmers'  Bank  v.  Smith,  19  Johns.  115.  A  by-law  or  rule, 
therefore,  of  a  bank,  that  all  payments  made  and  received  must 
be  examined  at  the  time,  does  not  p-revent  a  party  dealing  with 
the  bank  from  showing,  afterward,  that  there  was  a  mistake  in 
his  account  of  deposits  and  receipts.  Id.  And  see  Seneca  County 
Bank  v.  Lamb,  26  Barb.  595  ;  Driscoll  v.  West  Bradley  &  Cary 
Manuf  Co.,  59  N.  Y.  (14  Sick.)  96,  102.  Evidence  of  the  cashier 
as  to  what  the  by-laws  of  the  bank  are  is  inadmissible  ;  the  by- 
laws themselves  are  the  best  evidence.  Lumbard  v.  Aldrich,  8 
N.  H.  31. 

§  4.  Liens  of  banks  and  bankers.  In  general,  whenever  a 
banker  has  advanced  money  to  another,  he  has  a  lien  on  all  the 
paper  securities  which  are  in  his  hands  for  the  amount  of  his 
general  balance,  unless  such  securities  were  delivered  to  him 
under  a  particular  agreement.  Bank  of  the  Metropolis  v.  New 
England  Bank,  1  How.  234  ;  S.  C  ,  17  Pet.  174.  But  general 
liens  for  a  balance  of  account  are  not  favored.  And  if  there  be  a 
usage  giving  to  persons  engaged  in  discounting,  buying^  advanc- 
ing on,  or  selling  bills  or  notes,  a  lien  for  a  general  balance 
against  their  customer,  such  usage  should  be  proved.  It  will  not 
be  presumed  to  exist  in  the  absence  of  an  express  agreement. 


BANKS  AND  BANKING.  501 

Orant  v.  Taylor,  3  Jones  &  Sp.  (N.  Y.)  338  ;  52  N.  Y.  (7  Sick.) 
627. 

Courts  liave  judicially  taken  notice  of  the  lien  of  "  &<2?i/ter5  " 
who  are  strictly  such,  and  who  are  dealers  in  money.  But  even 
the  lien  of  a  hanker  does  not  exist  if  there  be  circumstances 
in  any  case  inconsistent  therewith.  Id.  Brandao  v.  Barnett,  3 
Man.,  Gran.  &  S.  519  ;  S.  C,  12  CI.  &  Fin.  805.  A  bank  has  no 
lien  upon  money  standing  to  the  credit  of  one  of  its  depositors 
for  the  amount  of  a  bill  of  exchange  indorsed  by  such  depositor, 
and  discounted  by  the  bank,  but  which  bill  has  not  yet  matured. 
Beckwith  v.  Union  Bank,  4  Sandf.  (N.  Y.)  604. 

§  5.  Deposits,  general  and  special.  All  deposits  made  with 
bankers  may  be  divided  into  two  classes,  namely :  1.  Those  in 
which  the  bank  becomes  bailee  of  the  depositor,  the  title  to  the 
thing  deposited  remaining  with  the  latter ;  and  2.  That  kind 
peculiar  to  banking  business,  in  which  the  depositor,  for  his  own 
convenience,  parts  with  the  title  to  his  money,  and  loans  it  to 
the  banker  ;  and  the  latter,  in  consideration  of  the  loan  of  the 
money,  and  the  right  to  use  it  for  his  own  profit,  agrees  to  refund 
the  same  amount,  or  any  part  thereof,  on  demand.  Marine 
Bank  v.  Fulton  Bank,  2  Wall.  252.  Everj^  deposit  is  general^ 
and  belongs  to  the  class  last  mentioned,  unless  the  depositor 
makes  it  special,  or  deposits  it  expressly  in  some  particular 
capacity.    Keene  v.  Collier,  1  Mete.  (Ky.)  415. 

When  a  deposit  is  made,  it  is  usual  for  the  cashier  to  give  a 
certificate  to  that  efifect,  or  to  credit  the  amount  in  the  depositor's 
bank  book,  and  from  this  may  be  gathered  the  nature  of  the 
deposit,  whether  it  be  general  or  special,  or,  in  other  words, 
whether  it  be  generally  passed  to  the  credit  of  the  depositor,  or 
specially  lodged  for  safe -keeping  merely.  Foster  v.  Essex  Bank^ 
17  Mass.  479  ;  see  'Wallace  v.  State  Bank,  7  Ark.  61.  In  a  gen- 
eral deposit  of  money,  the  depositor  has  no  right  to  the  particu- 
lar money  deposited,  as  in  the  case  of  a  special  deposit.  Lilly 
V.  Commissioners,  69  N.  C.  300 ;  Muffin  v.  Commissioners,  id. 
498  ;  see  Beatty  v.  McCleod,  11  La.  Ann.  76. 

If  money  be  deposited  in  a  sealed  packet,  bag,  box,  or  the 
like,  the  presumption  is,  that  it  was  intended  to  be  a  special  de- 
posit {Dawson  v.  Real  Estate  Bank,  5  Ark.  283) ;  and  it  would 
be  a  breach  of  trust  in  the  bank  or  its  officers  to  open  such  a 
packet,  etc.,  or  inspect  its  contents.  Foster  v.  Essex  Bank,  17 
Mass.  479,  504.  No  profit,  therefore,  can  arise  to  a  bank  from 
special  deposits,  unless  it  be  that  an  increased,  though  it  is  evi* 


502  BANKS  AND  BANKING. 

dent,  a  fallacious  credit,  is  acquired  with  the  community  on  their 
account.  Indeed,  they  are  simply  gratuitous  on  the  part  of  the 
corporation,  and  the  practice  of  receiving  them  must  have  origi- 
nated in  a  willingness  to  accommodate  members  with  a  place  for 
their  treasures,  more  secure  from  fire  and  thieves  than  their 
dwelling-houses  or  stores  ;  and  this  is  rendered  more  probable 
from  the  well-known  fact  that  not  only  money  or  bullion,  but 
documents,  obligations,  certificates  of  public  stocks,  wills,  and 
other  valuable  papers,  are  frequently,  and  in  some  banks  as  fre- 
quently as  money,  deposited  for  safe-keeping.  Id.  504. 

A  banker,  receiving  a  package  of  money  as  a  special  deposit 
without  compensation,  is  bound  only  for  slight  care,  and  is  re-- 
sponsible  only  for  gross  negligence.  Hale  v,  MawalUe,  8  Kans. 
137. 

Where  funds  are  deposited  with  a  bank  for  a  special  purpose, 
with  notice  thereof,  the  bank  cannot  refuse  to  apply  them  to  the 
object  for  which  they  were  deposited,  on  the  ground  that  a  debt 
is  due  to  it  by  the  depositor.  Bank  of  the  United  States  v. 
Macalester,  9  Penn.  St.  475. 

§  6.  Relation  between  bank  and  depositor.  The  relation  and 
relative  obligations  arising  between  a  bank  and  its  depositing 
customers,  are  in  general  simply  those  of  debtor  and  creditor. 
Foley  V.  Hill,  2  H.  L.  Cas.  28  ;  ^tna  National  Bank  v.  Fourth 
National  Bank,^Q  N.Y.  (1  Sick.)  82;  S.C.,  7  Am. Rep. 314;  Boy- 
den  V.  Bank  of  Cape  Fear,  &5  N.  C.  13 ;  Allen  v.  Fourth  Na- 
tional Bank  of  New  York,  5  Jones  &  Sp.  (N.  Y.)  137 ;  59  N.  Y. 
(14  Sick.)  12 ;  Buchanan,  etc.,  Co.  v.  Woodman,  1  Hun  (N.  Y.), 
639  ;  S.  C,  4  N.  Y.  S.  C.  (T.  &  C.)  193.  According  to  the  usual 
course  of  business,  and  in  the  absence  of  any  special  agree- 
ment, the  property  in  a  deposit  passes  to  the  bank.  The  banker 
cannot  be  sued  for  money  until  after  the  customer  has  drawn 
for  it,  or  in  some  way  required  its  repayment.     Ante,  253,  254. 

The  undeistanding  between  the  parties  is,  that  the  money  shall 
remain  with  the  banker  until  the  customer,  by  his  check,  or  in 
some  other  way,  calls  for  its  repayment ;  and  the  banker  is  not 
in  default,  and  no  action  will  lie,  until  payment  has  been  de- 
manded. Downs  V.  Phxnix  Bank,  6  Hill  (N.  Y.),  297 ;  Oddie 
V.  National  City  Bank  of  New  York,  45  N.  Y.  (6  Hand)  735  ; 
S.  C,  6  Am.  Rep.  160;  Bank  of  the  Republic  v.  Millard,  10  WalL 
152 ;  ante,  254.  It  is  not  the  case  of  a  bailmt^nt,  unless  the  d(> 
posit  is  special.     Wray  v.  Tuskegee  Ins.  Co.,  34  Ala.  58  ;  Egertoro 


BANKS  AND  BANKING.  503 

V.  Fulton  National  Bank,  43  How.  (N.  Y.)  216  ;  Bank  of  North- 
ern Liberties  v.  Jones,  42  Penn.  St.  536. 

In  the  case  of  a  general  depositor,  if  the  money,  checks,  or 
bills  deposited  are  stolen,  lost,  or  destroyed,  or  become  of  no 
value,  the  bank  sustains  the  loss,  and  the  depositor  is  still  a 
creditor  of  the  bank  {Matter  of  Franklin  Bank,  1  Paige,  249) ; 
and  has  no  valid  claim  to  a  priority  of  payment  over  bill  hold- 
ers or  other  creditors.  Id.  And  see  Ellis  v.  Linck,  3  Ohio  St. 
66. 

A  bank  is  bound  to  exhibit  its  books  to  a  depositor,  on  proper 
occasions,  and  the  officers  having  charge  of  them  are,  quo  ad 
hoc,  the  agents  of  both  parties.  Union  Bank  v.  Knapp,  3  Pick. 
(Mass.)  96. 

§  7.  Repayment  of  deposits.  When  money  is  deposited  with 
a  banker,  it  is  payable  on  demand  at  the  bank,  unless  some 
other  agreement  has  been  made  with  reference  to  its  payment. 
The  banker  may  pay  the  money  upon  an  oral  order,  or  transfer 
it  from  one  account  to  another  ;  and  such  oral  order  will  be  a 
sufficient  authority  and  justification  for  so  doing ;  but  the 
banker  is  under  no  obligation  to  act  upon  such  oral  direction. 
By  the  usages  of  the  banking  business  he  is  entitled  to  some 
written  evidence  of  the  order  for  money  upon  payment  thereof. 
McEwen  v.  Davis,  39  Ind.  109.  Banks  incur  a  liability  to  the 
depositor  by  the  simple  act  of  depositing  ;  that  is,  an  assumpsit 
in  law  implied  from  an  act  in  pais.  And  no  engagement  under 
seal  is  necessary  to  bind  them  to  repay.  Bank  of  Kentucky  v. 
Wister,  2  Pet.  318 ;  Mechanics''  Bank  v.  Bank  of  Columbia,  5 
Wheat.  326. 

The  promise  of  a  bank  to  one  of  its  depositors  to  pay  all 
checks  which  he  may  draw  does  not  make  the  bank  liable  to  an 
action  of  contract  by  the  holder  of  a  check  afterward  drawn  by 
him  for  part  of  the  amount  deposited.  Carr  v.  National  Secur- 
ity Bank,  107  Mass.  45 ;  S.  C,  9  Am.  Rep.  6.;  Lloyd  v.  McCaffrey, 
46  Penn.  St.  410  ;  Cliapman  v.  White,  6  N.  Y.  (2  Seld.)  412. 

When  a  trustee  deposits  trust  moneys  in  his  own  name  in  a  bank 
with  his  individual  money,  the  character  of  the  trust  money  is 
not  lost,  but  it  remains  the  property  of  the  cestui  que  trust.  If 
such  money  can  be  traced  into  the  bank,  and  it  remains  there, 
the  owner  can  reclaim  it.  When  deposited,  the  bank  incurred 
an  obligation  to  repay  it,  which  is  not  lessened  or  impaired 
because  it  incurred,  at  the  same  time,  an  obligation  to  pay  other 
money  belonging  to    the  agent    individually.      Van  Allen  v. 


504  BANKS  AND  BANKING. 

American  Baiik,  52  N.  Y.  (7  Sick.)  1 ;  Dishrow  v.  Mills,  2  Hun 
(N.  Y.),  132;  S.  C,  4  N.  Y.  S.  C.  (T.  &  C.)  682. 

§  8.  Who  may  withdraw  deposits.  A  banker  will  always  be 
justified  in  making  payments  upon  the  orders  of  the  person  who 
made  the  deposit,  or  upon  orders  of  any  person  whom  he  desig- 
nates as  competent  to  control  it,  until  he  has  notice  that  the 
ownership  is  claimed  by  somebody  else,  adversely  to  either  of 
these  parties.  McEwen  v.  Davis,  39  Ind.  109.  See  Coffi^n  v. 
Henshaio,  10  id.  277;  Farmers^,  etc..  Bank  v.  King,  67  Penn. 
St.  202 ;  Swartwout  v.  Meclianics''  Bank,  5  Denio  (N.  Y.),  655. 
If  a  bank,  having  a  deposit  of  money  in  the  name  of  a  firm, 
pays  it  out  on  the  individual  check  of  one  of  the  firm  in  his  own 
name  only,  it  can  only  justify  by  showing  that  the  money  thus 
drawn  was  applied  to  the  use  of  the  firm.  Coote  v.  Bank  of 
the  United  States,  3  Cranch  (C.  C),  60. 

It  has  been  held  that  payment  by  a  savings  bank  to  a  person 
presenting  a  pass-book  is  good,  if  the  officers  have  no  notice  of 
fraud  upon  the  depositor,  and  in  making  such  payment  exercise 
reasonable  care  and  diligence.  Schoenioald  v.  Metropolitan 
Savings  Bank,  67  N.  Y.  (12  Sick.)  418  ;  reversing  S.  C,  1  Jones 
&  Sp.  (N.  Y.)  440  ;  Hayden  v.  Brooklyn  Savings  Bank,  15  Abb. 
N.  S.  (N.  Y.)  297. 

§  9.  Demand  of  deposit.  A  bank  depositor  must  make  actual 
demand  before  he  can  sue  to  recover  his  deposit  {Johnson  v. 
Farmers''  Bank,  1  Harr.  [Del.]  117,  496;  Adams  v.  Orange 
County  Bank,  17  Wend.  614  ;  Bownes  v.  Bank  of  Charlestoion, 
6  Hill  [N.  Y.],  297) ;  and  the  statute  of  limitations  does  not  begin 
to  run  until  demand  has  been  duly  made.  Girard  Bank  v. 
Bank  of  Penn  Township,  39  Penn.  St.  92.  But,  where  a  bank 
suspends  payment  and  closes  its  doors  against  its  creditors,  a 
party  who  has  deposited  money  therein  may  maintain  an  action 
to  recover  the  amount  of  his  deposit,  without  first  making  a 
demand  of  payment.  Watson  v.  Phoenix  Bank,  8  Mete.  (Mass.) 
217.  And  a  demand  is  not  necessary  to  entitle  a  party  to  recover 
•money  deposited  with  the  bank,  after  the  bank  has  rendered  an 
account  claiming  it  as  its  own.  Bank  of  Missouri  v.  Benoist, 
10  Mo.  619.  So,  a  notification  by  a  bank  to  a  depositor,  that  his 
claim  will  not  be  paid  on  demand  at  the  counter,  dispenses  with 
the  necessity  of  a  demand,  as  preliminary  to  a  right  to  sue,  and 
the  statute  of  limitations  begins  to  run  from  that  time.  Farm- 
ers' Bank  v.  Planters'  Bank,  10  Gill  &  J.  (Md.)  422. 


BANKS  AND  BANKING.  505 

§  10.  Checks,  nature  and  requisites  of.  A  depositor  may  draw 
checks  upon  his  banker  at  pleasure  for  the  whole  or  any  part  of 
the  moneys  placed  to  his  credit  in  bank,  but  until  actual  pay- 
ment, or  acceptance  by  the  bank  of  the  depositor's  check,  or  an 
assignment  of  the  credit  by  the  depositor,  and  notice  to  the 
bank,  the  deposit  is  subject  to  the  depositor's  order.  Mtna  Nat. 
Bank  v.  Fourth  Nat  Bank,  46  N.  Y.  (1  Sick.)  82  ;  S.  C,  7  Am. 
Rep.  314 ;  Litnt  v.  Bank  of  North  America,  49  Barb.  221.  And 
he  may  recover  substantial  damages  against  his  banker  for  dis- 
honoring an  acceptance  and  checks,  if  there  be  sufficient  assets 
in  the  hands  of  the  latter,  at  the  time,  to  meet  them.  Rolin  v. 
Steward,  14  Com.  B.  595  ;  Wliitaker  v.  Bank  of  England,  1  Cr. 
Mees.  &  Ros.  744 ;  Marzettl  v.  Williams,  1  Barn.  &  Ad.  415  ; 
Boyd  V.  Emmerson,  2  Ad.  &  E.  184,  202.  But  the  right  of  the 
depositor  is  a  chose  in  action,  and  his  check  does  not  transfer 
the  debt,  or  give  a  lien  upon  it  to  a  third  person,  without  the 
assent  of  the  depositary.  Chapman  v.  Wliite,  6  N.  Y.  (2  Seld.) 
412  ;  Ballard  v.  Randall,  1  Gray,  605  ;  Wharton  v.  Walker,  4 
B.  &  C.  163  ;  Duncan  v.  Berlin,  60  N.  Y.  (15  Sick.)  151.  The 
holder  of  a  check  cannot,  therefore,  sue  the  bank  for  refusing 
payment  in  the  absence  of  some  special  matter  creating  a  privity 
between  the  bank  and  the  holder.  Carr  v.  Nat.  Security  Bank, 
107  Mass.  45;  S.  C,  9  Am.  Rep.  6,  and  note  ;  Bank  of  Repub- 
lic V.  Ifillard,  10  Wall.  152 ;  2  Pars,  on  Notes  &  Bills,  61,  and 
note;  Du7ican  v.  Berlin,  60  N.  Y.  (10  Sick.)  151.  The  recourse 
of  the  holder,  in  such  case,  is  against  the  drawer,  and  not  against 
the  bank,  although  the  bank,  at  the  time  the  check  was  pre- 
sented, held  funds  of  the  drawer  sufficient  to  pay  the  check.  lb. ; 
Moses  v.  Franklin  Bank,  34  Md.  574.  It  has,  however,  been 
held  that  where  a  bank  receives  a  check  drawn  upon  it  and 
charges  it  against  the  drawer  and  settles  with  him  upon  that 
basis,  the  payee  of  the  check  has  a  right  of  action  against  the 
bank  for  the  amount  of  the  check.  Seventh  Nat.  Bank  v.  Cook, 
73  Penn.  St.  751  ;  S.  C,  13  Am.  Rep.  751  ;  3  Pitts.  L.  J.  J  93.  See 
Bills  and  Notes. 

A  bank  check  is,  in  form  and  effi^ct,  substantially  the  same 
as  an  inland  bill  of  exchange,  and  the  rules  applicable  to 
the  one  are  in  general  applicable  to  the  other.  Murray 
V.  Judah,  6  Cow.  484 ;  Rarker  v.  Anderson,  21  Wend.  372  ; 
Barnet  v.  Smith,  10  Fost.  (N.  II.)  256.  Checks  are  said, 
however,  to  possess  the  distinguishing  characteristics  that  they 
are  always  drawn  on  a  bank  or  banker  ;  that  they  are  payable 

Vol.  I.  —  04 


606  BANKS  AND  BANKING. 

immediately  on  presentment,  without  the  allowance  of  any  days 
of  grace,  and  that  they  are  never  presentable  for  mere  acceptance, 
but  only  for  payment.  Stoey,  J.,  In  Matter  of  Brown,  2  Story 
(C.  C),  502.  See  Veazie  Bank  v.  Winn,  40  Me.  60  ;  Henderson 
V.  Pope,  34  Ga.  361 ;  Bowen  v.  Newell,  5  Sandf.  (N.  Y.)  326  ;  S. 
C,  2  Duer,  584;  8  N.  Y.  (4  Seld.)  190  ;  Ivory  v.  Bank  of  State 
of  Missouri,  3^  Mo.  475 ;  Andrew  v.  Blackly,  11  Ohio  St.  89 ; 
Harris  v.  Clark,  3  N.  Y.  (3  Comst.)  93. 

The  holder  of  a  check  can  recover  against  the  indorser  only 
when  he  has  used  due  diligence  in  presenting  it  and  giving 
notice  of  demand  and  non-payment  by  the  bank.  When  the 
parties  all  reside  in  the  same  place,  the  holder  should  present 
the  check  on  the  day  it  is  received,  or  on  the  following  day,  and 
when  payable  in  a  different  place  from  that  in  which  it  is  nego- 
tiable, the  check  should  be  forwarded  by  mail  on  the  same  or 
the  next  succeeding  day  for  presentment.  Veazie  Bank  v.  Winn, 
40  Me.  60 ;  Smith  v.  Jones,  20  Wend.  192 ;  Smith  v.  Miller,  43 
N.  Y.  (4  Hand)  171 ;  S.  C,  3  Am.  Rep.  690  ;  Bickford  v.  First 
Nat.  Bank  of  Chicago,  42  111.  238.  So,  it  has  been  held  that,  in 
order  to  charge  the  drawer  in  case  of  the  dishonor  of  a  check, 
it  must  be  presented  for  payment  within  a  reasonable  time, 
and  notice  given  to  the  drawer  within  a  like  reasonable  time, 
otherwise  the  delay  is  at  the  peril  of  the  holder.  Daniels  v. 
Kyle,  5  Ga.  245 ;  Harker  v.  Anderson,  21  Wend.  372.  Other 
cases  hold,  however,  that  mere  delay  in  presenting  a  check  for 
payment  will  not  discharge  the  drawer,  unless  he  has  been 
injured  thereby.  See  Little  v.  Phoenix  Bank,  2  Hill  (N.  Y.), 
425  ;  Woodin  v.  Frazee,  6  Jones  &  Sp.  (N.  Y.)  190  ;  Stewart  v. 
Smith,  Yl  Ohio  St.  82  ;  Smith  v.  Jones,  2  Bush  (Ky.),  103 ;  Laws 
V.  Rand,  3  C  B.  (N.  S.)  442.  But,  while  there  is  this  confusion 
in  the  cases,  as  to  the  time  within  which  a  check  payable  on 
demand  should  be  presented,  there  seems  to  be  none  in  regard 
to  the  necessity  of  a  demand  of  payment,  a  refusal  to  pay,  and 
a  notice  thereof  to  the  drawer,  before  he  can  be  made  liable  by 
suit.  lb. ;  Case  v.  Morris,  31  Penn.  St.  100  ;  Judd  v.  Smith,  3 
Hun  (N.  Y.),  190 ;  5  N.  Y.  S.  C.  (T.  &  C.)  255.  If,  however,  the 
drawer  of  a  check,  payable  instantly,  has  no  funds  at  the  time 
in  the  bank  upon  which  it  is  drawn,  it  is,  when  unexplained, 
deemed  a  fraud,  and  the  holder  can  sustain  an  action  upon  it, 
without  presentment  for  payment  or  notice.  Hoyt  v.  Seeley,  18 
Conn.  353 ;  True  v.  Thomas,  16  Me.  36 ;  Fitcli  v.  Redding,  4 
Sandf.  (N.  Y.)  130.     So,  the  drawer  of  a  check,  by  stopping  its 


BANKS  AND  BANKING.  507  ' 

payment  at  the  bank,  relieves  the  holder,  as  against  him,  from 
any  necessity  of  presentment  and  notice  of  non-payment.  Jacks 
V.  Darrin,  3  E.  D.  Smith  (N.  Y.),  657 ;  Purchase  v.  Mattlson,  6 
Duer  (N.  Y.),  587.  And,  payment  by  the  drawer,  of  part  of  a 
check,  after  it  becomes  due,  excuses  the  holder  from  proving  a 
demand  on  the  bank.  Levy  v.  Peters,  9  Serg.  &  R.  (Penn.)  125. 
A  holder  who  takes  a  check  in  good  faith  and  for  value  received, 
several  days  after  it  is  drawn,  receives  it  without  being  subject 
to  defenses  of  which  he  has  no  notice  before  or  at  the  time  his 
title  accrues.  In  re  Brown,  2  Story,  502  ;  Ames  v.  Meriam,  98 
Mass-  294.     See  Lancaster  BanJc  v.  Woodward,  18  Penn.  St.  357. 

Post-dated  checks  are  payable  on  the  day  of  their  date,  al- 
though negotiated  beforehand.  Taylor  v.  ^ip,  1  Yroom.  (N.  J.) 
284.  And  the  payment  by  a  bank  of  such  a  check  before  the 
day  upon  which  it  is  dated,  is  a  payment  in  its  own  wrong,  and 
the  money  so  paid  remains  to  the  credit  of  the  drawer.  lb.  The 
assignee,  in  good  faith  of  this  fund,  may  maintain  an  action 
against  the  bank  for  its  I'ecovery.  Godin  v.  Bank  of  Common- 
wealth, 6  Duer,  76. 

For  a  full  discussion  of  this  subject  see  Bills  and  Notes. 

§  11.  Certified  checks.  When  a  check  payable  to  bearer,  or 
order,  is  presented  with  a  view  to  its  being  marked  "  good,"  and 
is  so  certified,  the  sum  mentioned  in  it  must  necessarily  cease  to 
stand  to  the  credit  of  the  depositor.  It  thenceforth  passes  to  the 
credit  of  the  holder  of  the  check,  and  is  specilically  appropri- 
ated to  pay  it  when  presented  ;  and  as  the  purpose  of  having  it 
so  certified  is  not  to  obtain  payment,  but  to  continue  with  the  bank 
the  custody  of  the  money,  the  holder  can  have  no  greater  rights 
than  those  of  any  other  depositor.  Farmers  and  Mechanics^ 
Bank  of  Kent  Co.  v.  Butchers  and  Drovers'  Bank,  4  Duer  (N.Y.), 
219 ;  WiUets  v.  T7ie  Phcenix  Bank,  2  id.  121 ;  Girard  Bank  v. 
Bank  of  Penn  Township,  39  Penn.  St.  92.  When  a  check  is 
certified  ''good"  by  a  bank,  the  bank  does  not  warrant  the 
genuineness  of  the  body  of  the  check,  either  as  to  payee  or 
amount.  It  simply  certifies  to  the  genuineness  of  the  signature 
of  the  drawer,  and  that  he  has  funds  sufficient  to  meet  the  clieck, 
and  engages  that  those  funds  will  not  be  withdrawn  from  the 
bank  by  him.  It  has  accordingly  been  held,  that  wiiere  the 
plaintiff  certified  a  check  which  had  been  altered,  by  changing 
the  date,  name  of  payee,  and  raising  the  amount,  and  subse- 
quently paid  the  same  to  the  defendant,  that  the  amount  could 
be  recovered  back    as   for  money  paid    by  mistake    {Marine 


608  BANKS  AND  BANKING. 

National  Bank  v.  National  City  Bank,  59  N.  Y.  [14  Sick.]  67  ; 
reversing  S.  C,  4  Jones  &  Sp.  470.  See  also  Espy  v.  Bank  of 
Cincinnati,  18  Wall.  604  ;  Bank  of  North  America  v.  National 
Bank  of  CommonweaWi,  59  N.  Y.  [14  Sick.]  628  ;  iV^  Bank  of  C. 
in  N  Y.  V.  N  31.  Bank  A.  of  N  Y.,  55  N.  Y.  [10  Sick.]  211 ; 
Ilussey  V.  Eagle  Bank,  7  Mete.  [Mass.]  306.  But  see  Semnili 
National  Bank  v.  Cook,  73  Penn.  St.  483 ;  Barnet  v.  Smith,  30 
N.  H.  256 ;  Bounds  v.  Smith,  42  111.  245 ;  Merchants'  Bank  v. 
State  Bank,  10  Wall.  604),  from  which  it  would  appear  that  the 
certification  of  a  check  as  "  good,"  by  the  authorized  officer  of  a 
bank,  absolutely  binds  the  bank  as  acceptor.  And  see  Meads 
V.  Merchants'  Bank,  25  N.  Y.  (11  Smith)  143. 

§  12.  Paying  forged  checks.  The  drawee  of  a  check  is  pre- 
sumed to  know  the  handwriting  of  the  drawer  and  the  genuine- 
ness of  his  signature  to  the  paper ;  and  having  paid  the  same, 
although  it  should  afterward  be  discovered  that  the  name  of  the 
drawer  was  forged,  the  drawee  cannot  recover  back  the  money 
from  the  party  to  whom  it  was  paid.  Price  v.  Neal,  3  Burr. 
1354;  Weisser  v.  Denison,  10  N.  Y.  (6  Seld.)  68.  But  the  rule  is 
otherwise  where  the  forgery  is  not  in  counterfeiting  the  name  of 
the  drawer,  but  in  altering  the  body  of  the  check ;  for  to  require 
the  drawee  to  know  the  handwriting  of  the  body  of  the  check 
is  unreasonable,  and,  in  most  cases,  would  be  requiring  an  im- 
possibility. Bank  of  Commerce  v.  Union  Bank,  3  N.  Y.  (3  Comst.) 
230.  See  Belknap  v.  National  Bank,  100  Mass.  376 ;  Commer- 
cial, etc..  Bank  v.  First  National  Bank,  30  Md.  11. 

Hence,  it  is  held  that  where  a  bank  has  paid  by  mistake  to  a 
l)ona  fide  holder  a  certified  check,  which,  either  before  or  after 
certification,  had  been  fraudulently  altered  by  raising  the  amount, 
it  can  recover  back  the  sum  thus  paid.  National  Bank  of 
Commerce  in  New  York  v.  National  Mechanics'  Banking  Asso- 
ciation of  New  York,  55  N.  Y.  (10  Sick.)  211 ;  Marine  National 
Bank  v.  National  City  Bank,  69  N.  Y.  (14  Sick.)  67.  See  ante, 
§  11,  and  cases  there  cited.  It  is  likewise  held  that  a  bank  is 
not  responsible  for  the  genuineness  of  each  indorsement  pre- 
ceding the  party  presenting  or  depositing  the  check.  Levy  v. 
Bank  of  America,  24  La.  Ann.  220.  But  where  a  forged  certifi- 
cation of  a  check  is  presented,  at  the  bank  upon  which  the  check 
is  drawn,  to  the  teller  whose  certificate  it  purports  to  be,  and  he 
pronounces  it  genuine,  he  adopts  the  certification,  and  the  bank 
is  bound  by  it  the  same  as  though  it  were  genuine.  Continental 
Bank  v.  Bank  of  the  Commonwealth,  60  N.  Y.  (5  Sick.)  575. 


BANKS  AND  BANKING.  509 

§  13.  Notes  payable  at  a  bank.  By  making  a  note  negotiable 
at  bank,  the  maker  authorizes  the  bank  to  advance,  on  his  credit, 
to  the  holder,  the  sum  expressed  in  the  note.  Mandemlle  v. 
Union  Bank  of  Georgetoion,  9  Cranch,  9.  The  direction  in  a 
note,  making  it  payable  at  a  given  bank,  is  equivalent  to  a 
request  to  the  bank  to  pay  it.  Oriffin  v.  Mice,  1  Hilt.  (N.  Y.) 
184;  see  Wood  v.  Merchants'  Savings,^  etc.]  Co.,  41  111.267.  It 
would,  therefore,  be  a  fraud  on  the  bank-  to  attempt  a  set-off 
against  the  note  on  account  of  transactions  between  the  maker 
and  the  holder.  Mandemlle  v.  Union  Bank  of  Georgetown,  9 
Cranch,  9. 

The  certificate  of  a  bank  where  a  note  is  payable,  that  it  is 
"good,"  is  merely  information  that  the  maker  has  funds  in  the 
bank,  and  such  information  may  be  given  verbally,  by  letter,  or 
by  a  certificate  on  the  note  itself  The  correctness  of  the  cer- 
tificate is  a  matter  which  the  certifying  bank  has  the  means  of 
knowing,  and  is  bound  to  state  correctly ;  being  estopped  from 
denying  the  truth  of  its  statement,  if  the  presenting  bank,  rely- 
ing thereon,  fails  to  charge  the  indorsers.  Irmng  Bank  v. 
Wether  aid,  36  N.  Y.  (9  Tiff.)  335  ;  and  see  Marine  Nat.  Bank  v. 
Nat  City  Bank,  59  N.  Y.  (14  Sick.)  67,  77. 

§  14.  Over-drafts.  A  usage  to  allow  customers  to  overdraw, 
and  to  have  their  checks  and  notes  charged  up,  without  present 
funds  in  the  bank,  is  a  usage  and  a  practice  to  misapply  the 
funds  of  the  bank,  which  is  not  countenanced  in  a  court  of  jus- 
tice. See  Lancaster  Bank  v.  Woodward,  18  Penn.  St.  357 ; 
Minor  v.  Mechanics'  Bank,  1  Pet.  46.  It  is  not,  however,  an 
uncommon  thing  for  bankers  to  permit  over-drafts,  with  an 
understanding  that  the  account  should  be  made  good  before  the 
close  of  banking  hours  on  that  day,  or  soon  after ;  and  whether 
such  over-drafts  are  prudent  or  not,  depends  upon  the  character 
and  standing  of  the  drawer,  and  upon  the  circumstances  of 
each  case.  And  where  the  transaction  is  in  reality  a  loan  upon 
sufficient  security,  if  loss  is  sustained,  a  cashier  is  not  liable  for 
permitting  it  to  be  done  in  the  form  of  an  over-draft.  Commer- 
cial Bank  of  Albany  v.  Ten  Eyck,  48  N.  Y.  (3  Sick.)  305. 

A  bank  may  maintain  an  action  against  the  drawer  who  has 
received  moneys  from  their  cashier  on  checks  overdrawn.  Frank- 
lin Bank  v.  Byrarji,  39  Me.  489  ;  see  Keene  v.  Collier,  1  Mete. 
(Ky.)  415;  Tradesmen^  s  Bank  v.  Astor,  11  Wend.  87.  And  it 
is  held  that  where  a  party  fraudulently  overdraws  his  account 
at  a  bank,  the  property  of  the  bills  drawn  out  is  not  changed  ; 


510  BANKS  AND  BANKING. 

and  the  bank  may  follow  them,  except  in  the  hands  of  a  bona 
fide  holder  for  valuable  consideration,  who  has  taken  them  in 
the  ordinary  course  of  business.  Tradesmen' s  Bank  v.  Merriit, 
1  Paige,  802.  See  Justli  v.  Nat.  BanTc  of  Commonwealth^  5Q 
N.  Y.  (11  Sick.)  478. 

If  a  party  draws  a  check  on  a  bank,  without  funds  there  to 
meet  it,  he  is  not  entitled  to  notice  of  non-payment,  nor  is  he 
discharged  by  the  holder's  delaying  to  present  it  within  a  rea- 
sonable time.  Gushing  v.  Oore^  15  Mass.  69,  74 ;  Elchelberger 
V.  Finley^  7  Harr.  &  J.  (Md.)  381.  The  drawing  of  a  check  under 
such  circumstances  is,  when  unexplained,  a  fraud  which  deprives 
the  maker  of  all  right  to  require  presentment  and  demand  of 
payment.  Franklin  v.  Vanderpool,  1  Hall  (N.  Y.),  78;  Fitch 
V.  Redding,  4  Sandf.  130 ;  Healy  v.  Gilman,  1  Bosw.  235. 

§  15.  Pass-books.  A  regulation  by  a  savings  bank  that  the 
deposit  will  be  paid  only  upon  production  of  the  pass-book,  is 
held  to  be  reasonable ;  with  the  qualification,  however,  that 
proof  of  its  loss,  or  that  the  fact  that  it  cannot  be  found  after 
due  search,  will  entitle  the  depositor  to  draw  his  deposit  without 
it.  Warhus  v.  Bowery  Savings  Bank,  21  N.  Y.  (7  Smith)  543. 
See  Heath  v.  Savings  Bank,  46  N.  H.  78.  And  while  the  officers 
of  a  bank  are  held  to  the  exercise  of  reasonable  care  and  dili- 
gence, yet  in  paying  money  upon  the  presentation  of  a  deposit- 
book,  the  disbursing  officer  is  not  required  to  demand  strict 
proof  of  the  identity  of  the  depositor.  Sullivan  v.  Lewiston 
Institution  for  Savings,  56  Me.  507  ;  Hay  den  v.  Brooklyn  Sav- 
ings Bank,  15  Abb.  N.  S.  (N.  Y.)  297 ;  Schoenwald  v.  Metro- 
politan Savings  Bank,  57  N.  Y.  (12  Sick.)  418 ;  reversing  S.  C, 
1  Jones  &  Sp.  (N.  Y.)  440 ;  Kelly  v.  Emigrant,  etc.,  Savings 
Bank,  2  Daly  (N.  Y.),  27.  A  by-law  of  a  savings  bank,  assented 
to  by  its  depositors,  that  the  pass-book  of  each  depositor  con- 
taining his  account  shall  be  transferable  to  order,  does  not  ren- 
der such  pass-book  a  negotiable  instrument ;  and  even  if  it  did, 
it  would  not  be  so  as  to  third  parties.  Witte  v.  Vincenot,  43 
Cal.  325. 

An  entry  by  a  bank  teller,  of  the  amount  of  a  deposit  in  the 
bank-book  of  a  dealer  with  the  bank,  being  the  act  only  of  the 
agent  of  the  bank,  and  not  of  both  parties,  is  not  conclusive.  If, 
therefore,  the  dealer  can  afterward  prove  that  there  was  a  mis- 
take in  the  entry,  there  is  a  remedy  as  in  ordinary  cases  of 
mistake.  Mechanics  and  Farmers'*  Bank  v.  Smith,  19  Johns. 
115. 


BANKS  AlS^D  BANKING.  511 

§  16.  Certificate  of  deposit.  A  certificate  of  deposit  in  tlie  ordi- 
nary form  is  regarded,  by  some  autliorities,  as  possessing  all  the 
requisites  of  a  negotiable  promissory  note.  See  Bank  of  Orleans 
V.  Merrill,  2  Hill  (N.  Y.),  295  ;  Kilgore  v.  Bulkley,  14  Conn.  363 ; 
Lauglilin  v.  Marshall,  19  111.  390  ;  Carey  v.  McDougald,  17  Ga. 
84  ;  Gate  v.  Patterson,  25  Mich.  191 ;  Leamtt  v.  Palmer,  3  N.  Y. 
(3  Comst.)  19.  Other  authorities  regard  it,  however,  as  merely 
an  instrument  recording  the  agreement  of  the  parties  in  respect 
of  a  certain  deposit  of  money,  the  consideration  of  which  is 
stated  in  the  memorandum  itself,  and  to  be  rather  an  agreement 
than  a  promissory  note.  See  Charnley  v.  Dulles,  8  Watts  &  S. 
(Penn.)  353  ;  Talladega  Ins.  Co.  v.  Woodward,  44  Ala.  287 ;  Sibree 
V.  Tripp,  15  Mees.  &'Wels.  23. 

In  a  recent  case  it  was  held  that  a  certificate  of  deposit  issued 
by  a  bank  is  not  a  contract,  but  an  evidence  of  debt,  in  the  nature 
of  a  receipt,  and  that  parol  evidence  is  admissible  to  explain  it, 
as  in  case  of  a  receipt.  HotcJiJciss  v.  Moslier,  48  N.  Y.  (3  Sick.) 
478.  A  certificate  of  deposit,  like  a  deposit  credited  in  a  pass- 
book, is  intended  to  represent  moneys  actually  left  with  the  bank 
for  safe-keeping,  which  are  to  be  retained  until  the  depositor 
actually  demands  them.  And  such  a  certificate  is  not  dishonored 
until  presented.  National  Bank  of  Fort  Edward  v.  Washing- 
ton Co.  Nat.  Bank,  5  Hun  (N.  Y.),  605. 

A  bank  certificate  of  deposit  in  the  following  form  —  "A  has 
deposited  in  this  bank  $440,  subject  to  his  order,  payable  only 
on  the  return  of  this  certificate"  —  was  held  not  negotiable. 
Lebanon  Bank  v.  Mangan,  28  Penn.  St.  452. 

Under  the  provisions  of  a  statute,  which  forbid  the  circulation 
of  bills  or  notes  not  payable  on  demand,  banks  have  no  power 
to  issue  time  certificates  of  deposit,  and,  if  issued,  they  will  be 
void.  Bank  of  Peru  v.  Farnsworth,  18  111.  663  ;  see  also  Lea- 
mtt V.  Palmer,  3  N.  Y.  (3  Comst.)  19  ;  Bank  of  Orleans  v.  Merrill, 
2  Hill,  295. 

§  17.  Nature  of  bank  notes  or  bills.  A  bank  note,  popularly 
termed  a  "  bank-bill,"  is  a  promissory  note,  payable  on  demand 
to  the  bearer,  made  and  issued  by  a  person  or  persons  acting  as 
bankers  and  authorized  by  law  to  issue  such  notes.  1  Bouv.  Diet. 
187.  Bank  notes,  strictly  speaking,  are  not  money,  but  for  k^v^ry 
purpose  in  the  ordinary  transaction  of  busines,  tliey  are  consid- 
ered as  money.  Morrill  v.  Brown,  15  Pick.  (Mass.)  177  ;  Gover- 
nor V.  Carter,  3  Hawks  (N.  C),  328 ;  Pier  son  v.  Wallace,  2  Eng. 
(Ark.)  282. 


512  BANKS  AND  BANKING. 

They  are  a  good  tender,  unless  especially  objected  to  ( WaiTen 
V.  Mai7is,  7  Johns.  476  ;  Jloyt  v.  Byrnes,  11  Me.  475  ;  Wheeler 
V.  Knaggs,  8  Ohio,  169) ;  and  they  pass  under  the  word  "  money  " 
in  a  will,  and,  generally  speaking,  are  treated  ais  cash.  See 
Miller  v,  liace,  1  Burr.  452  ;  United  Slates  Bank  v.  Baiili  of 
Georgia,  10  Wheat.  347 ;  Drury  v.  Smith,  1  P.  Wms.  404  ;  Mor- 
ris V.  Edioards,  1  Ohio,  189  ;  S.  C.  again,  id.  524.  Bank  post 
notes,  being  intended  to  circulate  after  they  are  due,  like  other 
bank  notes,  are  not  subject  to  the  rules  applicable  to  ordinary 
promissory  notes,  but  are  assimilated  to  ordinary  bank  notes. 
Fulton  BanJc  v.  Phcenix  Bank,  1  Hall  (N.  Y.),  577.  See,  gener- 
ally, as  to  bank  notes,  Hastings  v.  Johnson,  2  Nev.  190 ;  Oox  v. 
Smith,  1  id.  161 ;  Mood  v.  Miller,  2  Duv.  (Ky.)  103  ;  Buchegger 
V.  Schiiltz,  13  Mich.  420  ;  Bedford  v.  Smith,  6  Bush  (Ky.),  129. 
See  Bills  and  Notes. 

§  18.  Destroyed,  mutilated,  or  lost  notes.  Where  the  destruc- 
tion of  a  bank  note  is  clearly  established,  the  bank  is  bound  to 
pay  the  owner  the  amount  of  it.  Bank  of  Louismlle  v.  Sum- 
mers, 14  B.  Monr.  (Ky.)  306  ;  Hagerstown  Bank  v.  Adams  Ex- 
press Co.,  45  Penn,  St.  419.  See  Irioin  v.  Planters''  Bank,  1 
Humph.  (Tenn.)  145  ;  Tower  v.  Applet6n  Bank,  3  Allen  (Mass.), 
387.  So  the  holder  of  a  bank  note,  who  has  divided  it  for  the 
purpose  of  transmission  by  mail,  and  has  lost  one-half,  can  re- 
cover of  the  maker  the  amount  of  the  whole  note ;  but  the  nego- 
tiability is  thereby  destroyed,  and  no  other  person  can  recover 
therefor  on  the  other  half.  Bank  of  Virginia  v.  Ward,  6  Munf. 
(Va.)  166  ;  Hinsdale  v.  Bank  of  Orange,  6  Wend.  378. 

§  19.  Forged  or  stolen  bills.  Any  holder  of  lost  or  stolen  bank 
bills,  who  has  received  them  in  good  faith  in  the  regular  course 
of  business  and  for  a  valuable  consideration,  can  recover  upon 
them  against  the  bank.  City  Bank  v.  Farmers',  etc.,  Bank, 
Taney,  119  ;  Olmstead  v.  Winsted  Bank,  32  Conn.  278.  And  an 
action  to  recover  cannot  be  defeated  by  proof  that  the  bills  were 
protested  before  the  plaintiff  purchased  them,  and  that  he  ob- 
tained them  at  a  discount.  lb.  Such  bona  fide  holder  does  not, 
however,  acquire  an  absolute  title  which  he  can  transmit  to  a  pur- 
chaser who  lias  notice  that  the  bills  were  stolen.  lb. 

Notes  issued  by  a  bank,  organized  under  an  unconstitutional 
law,  are  void,  and  will  constitute  no  consideration  for  a  promis- 
sory note.  Skinner  v.  Demming,  2  Ind.  558.  If  a  bank  receive 
as  genuine  forged  notes  purporting  to  be  its  own,  and  pass  them 
to  the  credit  of  a  depositor  who  acts  in  good  faith,  the  bank  is 


BANKS  AND  BANKING.  513 

bound  by  tlie  credit  thus  given,  and  the  notes  must  be  treated  as 
cash.  Baiik  of  United  States  v.  Bank  of  Georgia^  10  Wheat. 
333 ;  Gloucester  Bank  v.  Salem  Bank,  17  Mass.  33 ;  Salem  Bank 
V.  Gloucester  Bank^  id,  1.  But  where  a  person  obtained  bank 
notes  of  a  bank  by  means  of  a  forgery,  and  exchanged  them  for 
other  bank  notes  with  another  bank  and  individuals,  it  was  held 
that  the  bank  imposed  on  by  the  forgery  was  entitled  to  the  last- 
mentioned  bank  notes,  which  were  in  the  forger's  possession,  and 
had  been  received  by  him  as  its  property.  Coffin  v.  Anderson^ 
4  Blackf.  (Ind.)  395. 

§  20.  Demanding  payment  of  bank  bill.  Before  an  action  can 
be  sustained  upon  a  bank  bill,  promising  payment  upon  demand, 
there  must  be  a  demand  of  payment,  or  circumstances  must  ex- 
ist excusing  a  demand,  although  a  bill  is  not  made  payable  at 
any  particular  place  {Thurston  v.  Wolf  borough  Bank,  IS  N.  H. 
391.  '^e^  DougJierty  V.  Western  Bank,  13  Ga.  287;  Bryant  v. 
Damariscotta  Bank,  17  Me.  240 ;  State  Bank  v.  Van  Horn,  4  In". 
J.  L.  [1  South.]  382),  from  which  it  would  appear  that  a  bank 
bill,  like  any  other  note  of  hand  payable  on  demand,  but  having 
no  place  of  payment  appointed  therein,  may  be  sued,  and  the 
action  may  be  sustained  without  proof  of  any  special  demand. 
See  also  Ware  v.  Street,  2  Head  (Tenn.),  609. 

It  is  generally  true,  however,  that  a  cause  of  action  on  bank 
bills  does  not  accrue  until  a  demand  and  refusal.  Crawford  v. 
Bank  of  Wilmington,  Phill.  L.  (N.  C.)  136 ;  National  Bank  of 
Fort  Edward  v.  Washington  County  National  Bank,  5  Hun, 
605.  But  one  demand  of  payment  in  the  aggregate  is  sufficient 
on  presenting  to  a  bank  a  number  of  its  own  bills  {Suffolk  Bank 
V.  Lincoln  Bank,  3  Mason,  1 ;  Reapers''  Bank  v.  Willard,  24  111. 
433) ;  and  if  a  bank  closes  its  doors,  and  has  no  place  of  busi- 
ness, a  demand  is  not  at  all  necessary  in  order  to  sustain  an  action 
upon  its  bills.  Thurston  v.  Wolf  borough  Bank,  18  N.  H.  391.  So 
if  notes  made  payable  at  a  branch  of  the  principal  bank  are  called 
in  by  the  latter,  a  demand  at  the  latter  entitles  the  holder  to  sue 
that  bank  on  non-payment.  Nashmlle  Bank  v.  Henderson,  5 
Yerg.  (Tenn.)  104.  And  in  a  suit  against  one  who  passes  the 
note  of  a  broken  bank,  fraudulently,  or  with  a  promise  to  take 
it  back  if  found  to  be  uncurrent,  a  demand  on  the  makers  need 
not  be  proved.  Helling s  v.  Hamilton,  4  Watts  &  Serg.  (Penu.) 
462. 

Upon  demand  and  refusal  to  pay  a  bank  note,  the  holder  be- 
comes entitled  to  interest  from  that  time  to  the  date  of  actual 

Vol.  I.  — 65 


514  BANKS  AND  BANKING. 

payment,  the  same  as  upon  ordinary  liquidated  debts  over  due. 
And  the  fact  that  'the  note  is  not  expressed  to  be  payable  "with 
interest"  does  not  defeat  tlie  right.  EstaU  of  the  Barik  of 
Pennsyloania,  60  Penn.  St.  471.  And  see  Banlc  v.  Th.orns'berry, 
3  B.  Monr.  (Ky.)  519. 

§  21.  Mode  of  payment.  It  is  the  duty  of  a  bank,  on  the 
money  being  demanded  upon  its  notes,  to  pay  witliin  a  reason- 
able time  according  to  circumstances.  And  if  there  be  unrea- 
sonable delay,  it  amounts  to  a  refusal  of  payment.  Reapers' 
Bank  v.  Willard,  24  111.  433.  Thus  a  bank  cannot,  at  its  option, 
pay  out  in  small  pieces  when  it  has  large  on  hand,  thereby  cre- 
ating delay  ;  and  it  should  keep  money  ready  counted  out,  or 
servants  sufficient  to  count  it  out  within  a  reasonable  time.  lb. 
Suffolk  Banlc  v.  Lincoln  Bank^  3  Mason,  1 ;  Hubbard,  v.  Che- 
nango Bank,  8  Cow.  88.  See  Peoyle  v.  Dubois,  18  111.  333 ; 
Boatman's,  etc.^  Inst  v.  Bank  of  Missouri,  33  Mo.  497. 

The  fact  that  bank  notes  are  below  par  does  not  sender  theii" 
circulation  illegal ;  but  the  bank  must  pay  the  face  of  them  to 
the  holder,  although  he  took  them  below  par.  Robison  v.  Beall, 
26  Ga.  17.  So,  the  maker  of  a  note  payable  to  a;  bank  of  issue, 
has  a  right  to  tender  the  bills  of  such  bank  in  pa3'"ment  of  the 
note ;  and  the  bank  cannot,  by  an  assignment  of  its  effects,  de- 
prive its  debtor  of  this  right.    Blount  v.  Windley,  68  N.  C.  1. 

§  22.  Refusal  to  redeem^  consequence  of.  The  failure  of  a  bank 
to  redeem  its  notes  is  a  question  for  the  State  to  inquire  into,  and 
the  bank  possesses  the  power  to  make  loans  until  its  charter 
shall  have  been  declared  forfeited.  Robinson  v.  Bank  of  Darien^ 
18  Ga.  ^5;  Maury  v.  Ingraliam,  28  Miss.  171.  The  mere  act  of 
suspending  payment,  without  any  general  derangement  of  the 
business  of  the  bank,,  is  not,  intrinsically,  and  apart  from  any 
statute  provision,  a  forfeiture  of  its  charter;  and  especially 
where  the  legislature  have  provided  a  remedy  by  imposing  a 
penalty  or  damages  for  refusal  to  redeem  notes.  State  v.  Com- 
meroial  Bank  of  Cincinnati,  10  Ohio,  535.  But  the  suspension 
may  be  carried  so  far  as  to  afford  evidence  of  an  entire  misuser 
of  its  powers,  and  thus  extinguish  its  chartered  privileges.  lb. 
See  Rockwell  v.  State,  11  id.  130  ;  Livingston  v.  Banlc  of  N.  Y., 
26  Barb.  (N.  Y.)  304 ;  S.  C,  5  Abb.  338 ;  2  Broom  &  Had.  412, 
413,  and  notes  (Wait's  ed.). 

§  23.  Loans  and  discounts.  As  a  general  rule  a  bank,  in  making 
a  loan,  must  confine  itself  to  its  capital,  or  to  its  own  notes,  which 
it  is  legally  liable  to  redeem  ;  and  if  it  give  out  something  else  it 


BANKS  AND  BANKING.  515 

must  showtbat  the  transaction  is  in  substance  the  same.  Maury 
V.  Ingraliam,  2S  Miss.  171.  See  Bank  of  the  State  v.  Ford,  o  Ired. 
(N.  C.)  692.  But  a  power  in  the  charter  to  loan  on  banking  prin- 
ciples does  not  restrict  the  corporation  from  loaning  their  notes 
at  a  discount,  with  an  agreement  on  the  part  of  the  borrower  to 
redeem  with  specie  the  identical  bank  notes  received  by  him  on 
the  loan,  if  they  should  be  returned  to  the  bank  during  the  con- 
tinuance of  the  loan,  and  also  to  purchase  of  the  company,  with 
specie  during  the  loan,  a  certain  amount  of  other  bank  notes  not 
current  at  par,     Northampton  BanJc  v.  Allen,  10  Mass.  284. 

If  a  bank  charge  a  higher  rate  of  interest  than  is  allowed  by  its 
charter,  and  the  charter  is  silent  as  to  the  effect  or  penalty  of 
such  overcharge,  the  effect  is  not  to  render  the  whole  note  void, 
but  only  the  excess  beyond  the  legal  rate  ;  which  excess,  if  paid, 
can  be  recovered  by  the  borrower  or  his  assignee,  either  at  law 
or  in  equity.  Darby  y.  Boatmen^  s  Sav.  Inst,  1  Dill.  141.  See 
Bock  River  Bank  v.  Shericood,  10  Wis.  230 ;  Commercial  Bank 
V.  Nolan,  8  Miss.  508.  A  bank  buying  a  usurious  note  stands 
upon  the  same  footing  as  an  individual,  unless  its  charter  or 
some  statute  provides  differently.  Chafin  v.  Lincoln  Sav.  Bank, 
1  Heisk.  (Tenn.)  499.  In  the  case  of  a  mercantile  discount,  and 
ordinary  bills  and  notes  are  to  be  deemed  such,  the  bank  may 
deduct  the  whole  interest  for  the  time  they  have  to  run.  This  is 
only  an  anticipation  of  funds  and  not  usury.  Bank  of  Alexan- 
dria V.  MandemUe,  1  Cranch,  552.  But  the  privilege  given  to  a 
bank,  in  its  charter,  to  discount  upon  moneys  deposited  for  safe 
keeping,  does  not  extend  to  special  deposits.  Foster  v.  Essex 
Bank,  17  Mass.  479. 

Where  one  borrowing  money  at  a  bank  has  an  opportunity 
and  is  able  to  count  the  money  himself,  but  does  not,  and  accepts 
the  count  of  "the  bank  officer  as  a  performance  of  the  contract  of 
loan,  then,  although  such  acquiescence  and  acceptance  will  not 
be  conclusive  upon  him,  if  there  be,  in  fact,  a  mistake,  yet  the 
courts  should  require  clear  and  satisfactory  proof  to  open  the 
transaction  and  recover  for  such  mistake.  And  the  burden  of 
showing  a  mistake  rests  upon  the  party  seeking  to  recover. 
First  Nat.  Bank  v.  Haight,  55  111.  191. 

An  agreement  by  the  president  and  cashier  of  a  bank  that  the 
indorser  of  a  promissory  note  shall  not  be  liable  on  his  indorse- 
ment, does  not  bind  the  bank.  Bank  of  the  United  States  v. 
Dunn,  6  Pet.  51.     All  discounts  are  made  under  the  authority 


516  BANKS  AND  BANKING. 

of  the  directors,  and  it  is  for  them  to  fix  v^ny  conditions  which 
may  be  proper  in  loaning  money.  lb. 

§  24.  Collections  by  banks  and  bankers.  When  a  note  is  depos- 
ited with  a  bank  for  collection,  and  no  special  agreement  is 
made,  the  contract  to  be  implied  is  one  of  agency  merely,  and 
the  duties  and  liabilities  'of  the  bank  are  those  of  an  agent  of  the 
holder  or  depositor.  Montgomery  Count ij  Bank  v.  Albany  City 
Banky  7  N.  Y.  (3  Seld.)  459 ;  Bank  of  Mohile  v.  Hug  gins  ^  8 
Ala.  206  ;  Alley  v.  Rogers,  19  Gratt.  (Ya.)  366.  But  in  no  sense 
is  the  bank  the  agent  of  the  maker  of  the  note.  And  a  maker, 
who  pays  his  note  at  bank,  cannot  recover  back  the  payment 
from  the  bank  on  the  ground  that  it  has  failed  to  account  to  the 
owner.  Smith  Y.Essex  Co.  Bank,  22  Barb.  (N.  Y.)  627;  see 
Runyon  v.  Latham,  5  Ired!  L.  (N.  C.)  551. 

The  fact  that  a  bank,  receiving  paper  for  collection,  may  rea- 
sonably expect  that,  according  to  the  usual  course  of  business, 
the  proceeds  may  lie  in  their  hands  a  longer  or  shorter  period, 
is  a  sufficient  consideration  for  their  undertaking  to  collect- 
Bniedes  v.  Utica  Bank,  20  Johns.  372.  See  Thompson  v.  Bank 
of  the  State,  3  Hill  (S.  C),  77. 

§  25.  Liability  of  collecting  bank.  A  bank  receiving  a  bill  or 
promissory  note  for  collection,  in  the  usual  course  of  business, 
is  bound  to  use  reasonable  skill  and  diligence  in  making  the 
collection  {Fabens  v.  Mercantile  Bank,  23  Pick.  [Mass.]  330) ; 
and  whether  the  bill  or  note  be  payable  at  its  counter  or  else- 
where, the  bank  is  held  liable  for  any  neglect  of  duty  occurring 
in  its  collection,  by  which  any  of  the  parties  are  discharged, 
whether  of  the  officers  and  immediate  servants,  or  other  agents 
of  the  bank,  or  its  correspondents,  or  agents  employed  by  such 
correspondents.  Ayrault  v.  The  Pacific  Bank,  47  N.  Y.  (2  Sick.) 
570;  S.  C,  7  Am.  Rep.  489;  ante,  244.  But  see  Daly  v.  Butchers 
and  Dr oners''  Bank,  etc.,  56  Mo.  93.  This  general  liability  may  be 
varied  by  express  contract  or  by  implication  arising  from  general 
usage,  but  the  practice  or  usage  of  banks  adopted  for  their  own 
convenience  in  the  transaction  of  their  business,  cannot  vary  the 
contract  between  them  and  their  dealers.  lb.  See  Crow  v. 
Mechanics  and  Traders'*  Bank,  12  La.  Ann.  692 ;  Bank  of 
Montgomery  v.  Knox,  1  Ala.  148  ;  Montgomery  County  Bank  v. 
Albany  City  Bank,  7  N.  Y.  (3  Seld.)  459.  In  accordance  with 
the  rule  above  stated,  it  is  held  that  if  a  bank  employs  a  notary 
to  present  the  note  for  payment,  and  to  give  the  proper  notices 
to  charge  the  parties,  the  notary  is  the  agent  of  the  bank,  and 


BANKS  AND  BANKING.  517 

not  of  the  depositor  or  owner  of  the  paper,  and  the  bank  is 
liable  for  any  neglect  of  duty  by  liim,  by  which  any  of  the  par- 
ties are  discharged.  Ayrault  v.  The  Pacific  Bank^  47  N.  Y.  (2 
Sick.)  570;  S.  C,  7  Am.  Rep.  489;  ante,  244.  But  see,  contra,  Bawl- 
ing  V.  ArtTiuT,  34  Miss.  41;  Citizens''  BauTc  v.  Hoioell,  8  Md.  530 ; 
Daly  V.  Butchers  and  Drovers''  Bank,  etc.,  56  Mo.  93;  Wingate  v. 
Mechanics'  Bank,  10  Penn.  St.  104 ;  Mtna  Ins.  Co.  v.  Allen 
Bank,  25  111.  243. 

§  26.  Employing  second  l)ank.  Bills  of  exchange  payable  at 
distant  places,  and  left  with  a  bank  for  collection,  are  p)resiuned 
to  be  intended  to  be  transmitted  to,  and  collected  by,  suitable 
sub-agents  at  the  places  where  payable;  since  it  cannot  be 
expected  that  a  bank  will  employ  one  of  its  officers  to  journe}^ 
about  and  collect  such  bills.  It  has,  therefore,  been  held  that, 
in  such  case,  as  in  the  case  of  bills  expressly  left  with  a  bank 
for  transmission  only,  if  the  bank  in  good  faith  employs  suitable 
sub-agents  for  collection,  it  is  not  liable  for  their  neglect  ■  or 
default.  Bank  of  Washington  v.  Tri'plttt,  1  Pet.  25  ;  Mechanics'' 
Bank  v.  Earx^,  4  Eawle  (Penn.),  384;  Fahens  v.  Mercantile 
Bank.  23  Pick.  (Mass.)  330;  Daly  v.  Butchers  and  Droi^iers'' 
Bank,  etc.,  56  Mo.  93  ;  ante,  251.  An  opposite  doctrine  is,  how- 
ever, held  in  New  York.  Allen  v.  Merchants''  Bank,  22  Wend. 
215 ;  Ayrault  v.  The  Pacific  Bank,  ATI  N.  Y.  (2  Sick.)  570 ;  S.  C, 
7  Am.  Rep.  489.  And  see  Young  v.  Noble,  2  Disney  (Ohio), 
485.    Ante,  §  25 ;  ante,  251. 

§  27.  Liability  of  second  bank.  The  ordinary  course  of  busi- 
ness in  transmitting  paper  from  a  bank  holding  it  to  another 
bank  for  collection,  does  not  give  the  bank  employed  to  collect 
any  better  title  to  the  paper  or  its  proceeds,  than  that  of  the  original 
bank.  And  unless  there  are  special  circumstances  tending  to 
constitute  the  collecting  bank  an  owner  for  value,  it  holds  the 
paper  subject  to  any  rights  of  one  showing  himself  to  be  the  true 
owner,  or  any  equities  or  defenses  of  the  maker,  which  would 
be  available  against  the  principal  bank.  Commercial  Bank  of 
Clyde  V.  Marine  Bank,  1  Abb.  Ct.  App.  (N.  Y.)  405  ;  S.  C,  3 
Keyes,  337  ;  6  Abb.  N.  S.  33  ;  1  Trans.  App.  302  ;  37  How.  432  ; 
Dicker  son  v.  Wason.  47  N.  Y.  (2  Sick.)  439  ;  S.  C,  7  Am.  Rep. 
455 ;  Dod  v.  National  Bank,  59  Barb.  265  ;  Quebec  Bank  of  To- 
ronto V.  Weyand,  2  Cinn.  (Ohio)  538.  See  First  Nat.  Bank  v. 
Bache,  71  Penn.  St.  213;  Arnold  v.  Macungie  Savings  Bank,  id. 
287.  The  collecting  bank  is  bound  to  present  the  bill  or  note 
for  payment,  and  iT  not  paid  at  maturity,  to  give  due  notice  of 


518  BANKS  AND  BANKING. 

tlie  dishonor  to  the  bank  from  which  the  note  was  received  ;  but 
it  is  not  required,  in  the  absence  of  express  contract  or  usage,  to 
give  notice  to  any  other  party  to  the  note.  Phipps  v.  MilTbury 
Banlc,  8  Mete.  (Mass.)  79  ;  State  Baiik  v.  Baiik  of  the  Capitol, 
4L  Barb.  343.    But  see  Smedes  v.  Bank  of  Utlca,  20  Johns.  372. 

Money  collected  by  one  bank  for  another,  placed  by  the  col- 
lecting bank  with  the  bulk  of  its  ordinary  banking  funds  and 
credited  to  the  transmitting  bank  in  account,  becomes  the  money 
of  the  former.  Hence,  it  is  held  that  any  depreciation  in  the 
specific  bank  bills  received  by  the  collecting  bank,  which  may 
happen  between  the  date  of  the  collecting  bcink'  s  receiving  them 
and  the  other  bank's  drawing  for  the  amount  collected,  falls 
upon  the  former.  Marine  Barik  v.  Fulton  Bank,  2  Wall.  252. 
That  a  bank  may  recover  from  another  bank,  employed  by  it  to 
collect  a  note,  a  sum  of  money  paid  out  by  mistake  of  fact,  see 
rjnion  Nat  Bank  v.  Sixth  Nat  Bank,  43  N.  Y.  (4  Hand)  452. 

A  Cincinnati  banking  firm,  Y.  &  P.,  after  receiving  from  the 
owner  a  bill  of  exchange,  and  undertaking,  gratuitously,  to  send 
it  for  collection  to  a  bank  in  New  York,  where  payable,  and 
pay  over  the  proceeds  to  the  owner,  ordered  the  bank  when  the 
bill  was  paid  to  place  the  proceeds  to  their  general  accounts, 
which  the  bank  did,  but  failed  before  the  money  was  drawn  by 
Y.  &  P.  It  was  held  that  Y.  &  P.  were  liable  to  the  owners  for 
tlie  proceeds.  The  bank  became  their  agent  in  the  collection. 
Young  v.  Nohle,  2  Disney  (Ohio),  485. 

§  28.  Powers  and  duties  of  cashier.  In  all  transactions  in 
which  a  bank  may  lawfully  engage,  the  cashier  is  its  managing 
agent,  and  speaks  for  the  corporation.  Caldwell  v.  Mohawk, 
etc..  Bank,  64  Barb.  333.  He 'is  the  general  executive  officer  to 
manage  the  concerns  of  the  bank,  in  all  things  not  peculiarly 
committed  to  the  directors.  Bis  sell  v.  First  Nat  Bank,  69 
Penn.  St.  415 ;  ante,  221.  His  acts,  to  be  binding  upon  the 
bank,  must  be  done  within  the  ordinary  course  of  his  duties. 
His  ordinary  duties  are  to  keep  all  the  funds  of  the  bank,  its 
notes,  bills  and  other  choses  in  action,  to  be  used  from  time  to 
time  for  the  ordinary  and  extraordinary  exigencies  of  the  bank. 
He  usually  receives,  directly  or  tlirough  the  subordinate  officers 
of  the  bank,  all  moneys  and  notes  of  the  bank,  delivers  up)  all 
discounted  notes  and  other  securities,  when  they  have  been  paid, 
draws  checks  to  withdraw  the  funds  of  the  bank,  when  they 
have  been  deposited,  and,  as  the  executive  officer  of  the  bank, 
U-ansacts  most  of  its  business.     United  States  v.  City  Bank  of 


BANKS  AND  BANKING.  519 

Columhus^  21  How.  356 ;  Bank  of  Metropolis  v.  Jones^  8  Pet. 
12 ;  State  v.  Commercial  Bank,  14  Miss.  (6  Smed.  &  M.)  218 ; 
Ryan  v.  Dunlap^  17  111.  40 ;  Bank  of  Kentucky  v.  Schuylkill 
Bank,  1  Pars.  Sel.  Cas.  (Penn.)  ISO,  243.  He  is  the  financial 
oificer  of  tiie  bank,  and  liis  agreements  in  behalf  of  his  princi- 
pal, in  all  matters  relating  to  its  business  of  discounting  and 
balking,  are  binding  upon  it  to  the  same  extent  as  if  made  by 
a  resolution  of  the  board  of  directors.  Wakefield  Bank  v.  Trues- 
delh^i)  Barb.  602. 

Bu  the  acts  of  a  cashier  are  only  binding  upon  the  bank  when 
he  acs  within  the  scope  of  his  ''ordinary  duties."     And  this  is 
held  mt  to  comprehend  a  contract  made  by  a  cashier,  without 
an  exp-ess  delegation  of  power  from  a  board  of  directors  to  do 
so,  whi'h  involves  the  payment  of  money,  unless  it  is  such  as 
has  beei  loaned  in  the  customary  way  ( United  States  v.  City 
Bank  of  Columbus,  21  How.  356) ;  nor  can  a  cashier  purchase  or 
sell  the  property  of,  or  create  an  agency   of  any  kind  for,  a 
bank,  witiout  authority  so  to  do  (lb.) ;  and  he  has  no  authority, 
upon  a  noe  being  offered  for  discount,  to  bind  the  bank  by  his 
declaratioi  to  a  person  about  to  become  an  indorser  on  it,  that 
he  will  incir  no  risk  or  responsibility  by  his  becoming  an  in- 
dorser upoi  such  discount.    Bank  of  Metropolis  v.  Jones,  8  Pet. 
12 ;   see  Mecliants'  Bank  v.  Marine  Bank,  3  Gill.  (Md.)  96 ; 
HarrishurgBank  v.  Tyler,  3  Watts  &  S.  (Penn.)  373.     So  the 
general  powrs  of  a  cashier  do  not  include  an  authority  to  bind 
the  bank  to  iidemnify  an  officer  for  levying  upon  property  on 
an  execution  n  favor  of  the  bank  ( Watson  v.  Bennett,  12  Barb. 
196) ;  and  the  >resident  and  cashier  of  a  bank  have  no  power  as 
such  to  execut*a  mortgage  on  the  real  estate  of  the  corporation 
{^Leggett  v.  N&i  Jersey  Manuf  and  Banking  Co.,  1  N.  J.  Eq. 
441) ;  nor  is  eithr  one  of  them  empowered,  DirtiUe  officii,  merely 
and  without  ex  jess  authority  from  the  board  of  directors,  to 
release  the  makea  of  a  note,  payable  to  and  held  by  the  bank, 
from  his  legal  liallity  on  such  note  {Hodge  v.  National  Bank, 
22  Gratt.  [Va.]  51)  nor  has  the  cashier,  as  such,  any  authority 
in  another  State,  tc  settle  an  account,  taking  private  notes  and 
drafts,  and  giving  i  receipt  in  full.    Manhattan  Life  Ins.  Co. 
V.  Farmers',  etc.,  M.  Bank,  1  Biss.  146.    He  may,  however,  in 
virtue  of  his  general^mployment,  borrow  on  behalf  of  the  bank. 
Barnes  v.  Ontario  ±ink,  19  N.  Y.  (.5  Smith)  162  :  Ballston  Spa 
Bank  v.  Marine  Bak,  W  Wis.  120.    And  the  acts  of  a  cashier 
of  a  bank  in  pursuant  of  authority  from  the  board  of  directors, 


520  BANKS  AND  BANKING- 

although  in  violation  of  the  law  of  its  existence,  bind  the  bank. 
Hagerstoion  Bank  v.  London^  etc.,  Soc,  3  Grant's  Cas.  (Penn.)  135; 
Badger  v.  Bank  of  Cumberla7id,  26  Me.  428.  So,  if  the  direct- 
ors, either  through  inattention  or  otherwise,  suffer  the  cashier  to 
pursue  a  particular  line  of  conduct  for  a  considerable  period, 
without  objection,  the  bank  will  be  bound  by  his  acts.  CaJducell 
V.  Mohaiok,  etc.,  Bank,  64  Barb.  333. 

The  cashier  of  a  bank  is  bound  to  exercise  reasonable  skilUnd 
ordinary  care  and  diligence  in  the  performance  of  his  duties. 
Gommeroial  Bank  of  Alb  any  v.  Ten  Eyck,  48  N.  Y.  (3  Sick./'  305. 
In  the  absence  of  fraud  or  collusion,  he  is  not  liable  to  thebank 
for  an  act  done  under  the  direction  of  its  president,  the  nanag- 
ing  officer,  and  where  the  circumstances  do  not  disclose  'he  ab- 
sence of  due  care  and  diligence  upon  his  part.  Thus,  wiere  the 
transaction  is  in  reality  a  loan  upon  sufficient  security,  i'  loss  is 
sustained,  a  cashier  is  not  liable  for  permitting  it  to  bfdone  in 
the  form  of  an  overdraft.  lb. 

Where  a  cashier  applies  the  notes  of  the  bank  to  his  own  use, 
he  is  liable  for  the  full  nominal  amount,  and  cannot  avtil  himself 
of  their  depreciation.  Pendleton  v.  Bank  of  Kentud^y^  1  T.  B. 
Monr.  (Ky.)  177. 


BILLS  OF  LADING.  621 

CHAPTER  XXill. 

BILLS  OF  LADING. 

TITLE  L 

OF  THE  RIGHTS,  DUTIES,  LIABILITIES  AND  REMEDIES  OF 
PARTIES  TO  BILLS  OF  LADING,  OR  TO  INDORSEES  OR 
HOLDERS  OF  THEM,  OR  OF  POSSESSORS  OF  THE  PROP- 
ERTY IN  THEM. 

AETICLE  I. 

GENERAL   PRINCIPLES  EELATII^G  TO   BILLS   OF  LADING. 

Section  1.  Nature  of  a  bill  of  lading.  A  bill  of  lading  is  a 
document  that  has  been  in  general  use  among  aU  commercial 
nations  from  the  earliest  times,  and  it  is  briefly  defined  to  be  the 
written  evidence  of  a  contract  for  the  carriage  and  delivery  of 
goods  sent  by  sea  for  a  certain  freight  {Mason  v.  LicTcbarrow^ 
1  H.  Bl.  359) ;  or  it  forms  the  contract  between  the  consignor 
and  the  carrier  for  the  transportation  of  the  goods.  Grace  v. 
Adams^  100  Mass.  505.  A  more  extended  definition,  and  one 
approved  by  the  courts  is,  that  the  bill  of  lading  is  a  written 
acknowledgment,  signed  by  the  master,  that  he  has  received  the 
goods  therein  described  from  the  shipper,  to  be  transported  on 
the  terms  therein  expressed,  to  the  described  place  of  destina- 
tion, and  there  to  be  delivered  to  the  consignee  or  parties  therein 
designated.  Abbott  Ship.  323;  and  see  OBrieri  v.  GUclirist, 
34  Me.  558 ;  The  Delaware,  14  Wall.  600.  Some  writers  give  it 
as  an  example  of  an  instrument  which  partakes  of  a  two-fold 
character  ;  that  is,  it  is  a  receipt  as  to  the  quantity  and  descrip- 
tion of  the  goods  shipped,  and  a  contract  to  transport  and  deliver 
the  goods  to  the  consignee  or  other  person  therein  designated, 
and  u]-)on  the  terms  specified  in  the  same  instrument.  lb.  Tlte 
Mazjfloicer,  3  Ware,  300  ;  Cafiero  v.  Welsh,  1  Leg.  Gaz.  Rep.  (Pa.) 
121 ;  8ac7c  v.  Ford,  13  C.  B.  (N.  S.)  100  ;  Adams  v.  Packet  Co.^ 

5  id.  492 ;  Wolfe  v.  Myers,  3  Sandf  (N.  Y.)  7.  And  it  is  held  that 
any  instrument,  however  informal,  which  has  these  character- 
istics, will  take  effect  as  a  bill  of  lading.   See  Way! and  v.  Mosely, 

6  Ala.  430 ;   Daws  v.  Greene,  24  N.  Y.  (10  Smitb)  638  ;   Rawls  v. 

Vol.  L  —  66 


522  BILLS  OF  LADING. 

Desliler,  4  Abb.  Ct.  App.  (N.  Y.)  12,  19;  S.  C,  3  Keyes,  572; 
Liclcbarrow  v.  Masoriy  1  Sm.  Lead.  Gas.  900. 

A  bill  of  lading  is  called  a  maritime  contract  —  a  sea  docu- 
ment—  and  it  has  been  questioned  whetlier  a  receipt  given  by  a 
carrier  for  goods  or  merchandise  placed  in  his  hands  for  trans- 
portation from  one  part  of  the  samew  country  to  another,  along 
the  line  of  a  canal  or  railroad,  is  a  bill  of  lading  in  the  sense  of 
the  commercial  law.  See  Bryans  v.  Nix,  4  Mees.  &  Wels.  775 ; 
BolbrooTc  v.  Yose,  6  Bosw.  (N.  Y.)  76, 109 ;  1  Sm.  Lead.  Gas.  900. 
But  this  doubt  is  said  to  have  but  little  foundation,  and  is  im- 
pliedly excluded  by  the  decisions  in  this  country,  which  treat 
the  legal  effect  of  instruments  of  this  description  as  the  same, 
whether  the  property  which  they  represent  is  carried  by  land  or 
across  the  ocean.  lb.  Bows  v.  Perrin^  16  N.  Y.  (2  Smith)  325 ; 
Grace  v.  Adams,  100  Mass.  505  ;  Blade  v.  Cldcago,  etc.,  H.  H., 
10  Wis.  505 ;  Dows  v.  Mush,  2S  Barb.  157. 

§  2.  Who  may  make  them.  The  bill  of  lading  must  be  signed 
by  the  master,  or  by  some  one  authorized  b}''  him  {Covill  v.  Hill, 
4  Denio  [N.  Y.],  323  ;  Wolfe  v.  Myers,  3  Sandf.  [N.  Y.]  7) ;  and 
a  writing,  which  is,  in  form,  a  bill  of  lading,  but  signed  only  by 
the  consignor,  is  not  a  bill  of  lading.  Gage  v.  Jaqueth,  1  Lans. 
(N.  Y.)  207 ;  but  see  Bows  v.  Greene,  32  Barb.  490.  By  a  usage 
recognized,  however,  in  some  of  our  commercial  cities,  the  bill  of 
lading  is  signed  and  delivered  in  the  countiug-room  of  the  own- 
ers by  a  clerk  of  the  owner.  And  a  bill  of  lading  signed  by  the 
clerk  of  a  canal  boat  line,  in  the  name  of  the  owners,  was  held  a 
valid  bill  of  lading.  Bows  v.  Perrin,  16  N.  Y.  (2  Smith)  328. 
The  signature  of  the  master  would  seem  to  be  important,  only  as 
representing  the  owner.  lb.  See  Putnam  v  Tlllotson,  13  Mete. 
(Mass.)  517 ;  Coosa  Miver  Steamboat  Go.  v.  Barclay,  30  Ala.  120 ; 
Bows  v.  Greene,  30  Barb.  490 ;  EolorooJc  v.  Yose,  6  Bosw.  (N.  Y.) 
76, 110. 

§  3.  To  whom  given.  Bills  of  lading  are  usually  made  out  in 
sets  of  three.  One  is  retained  by  the  consignor,  one  is  sent  either 
with  the  goods  or  by  a  separate  conveyance  to  the  consignee,  and 
the  master  should  always  retain  one  for  his  own  use.  See  The 
Belaware,  14  Wall.  679,  596  ;  Comll  v.  Hill,  4  Denio,  323,  330. 

§  4.  Form  and  requisites.  A  bill  of  lading  should  state,  among 
other  things,  by  whom  the  goods  are  shipped,  and  where,  and  to 
whom  they  are  to  be  delivered,  and  all  its  statements  should  be 
exactly  accurate.  Such  an  instrument  acknowledges  tlie  bail- 
ment of  the  goods,  and  is  evidence  of  a  contract  for  the  safe  cus- 


BILLS  OF  LADING.  523 

tody,  due  transport,  and  riglit  delivery  of  the  same,  upon  tlie 
terms,  as  to  freigiit,  therein  described,  the  extent  of  the  obliga- 
tion being  specified  in  the  instrument.  See  Knox  v.  The  Nlnetta, 
Crabbe,  684;  Bicker-son  v.  Seelye,  12  Barb.  99  ;  0''Brien  v.  Oil- 
christ,  34  Me.  564.  Contracts  for  the  freighting  of  goods  on  our 
canals  and  railroads  are  usually  less  full  and  formal  than  when 
the  property  is  to  be  carried  by  sea ;  but  they  must  have  all  the 
essential  qualities  or  else  they  cannot  have  the  etfect  of  bills  of 
lading.  Comll  v.  Hlll^  4  Denio,  330  ;  Wolfe  v.  Myers^  3  Sandf.  7. 
See  Dows  v.  Perrin,  16  N.  Y.  (2  Smith)  328.  The  master  is  not 
bound  to  specify  the  freight  in  a  bill  of  lading.  TJie  MayJloioeTy 
3  Ware,  300. 

Regidarly,  the  goods  ought  to  be  on  board  before  the  bill 
of  lading  is  signed.  The  Loon^  7  Blatchf.  244  ;  LiGlcbarroiD  v. 
MasoTiy  2  T.  R.  6S,  75.  But  if  the  bill  of  lading,  through  inad- 
vertence or  otherwise,  is  signed  before  the  goods  are  actually 
shipped,  as  if  they  are  received  on  the  wharf  or  sent  to  the  ware- 
house of  the  carrier,  or  are  delivered  into  the  cnsiody  of  the 
master  or  other  agent  of  the  owner  or  charterer  of  tlie  vessel, 
and  are  afterward  placed  on  board,  as  and  for  the  goods  eiubraced 
in  the  bill  of  lading,  it  is  clear  that  the  bill  of  lading  w iil  optrate 
on  those  goods  as  between  the  shipper  and  the  earlier  by  way 
of  relation  and  estoppel,  and  that  the  rights  and  obligations  of 
all  concerned  are  the  same  as  if  the  goods  had  been  actually 
shipped  before  the  bill  of  lading  had  been  signed.  The  £Jddy, 
5  Wall.  495  ;  Rouiley  v.  Bigelow,  12  Pick.  (Mass.)  307 ;  The  Dela- 
ware, 14  Wall.  579,  GOO.  See  The  Peytona,  2  Curtis  (C.  C),  21; 
Graham  v.  Ledda,  17  La.  Ann.  45. 

Where  the  goods  of  a  consignment  are  not  aU  sent  on  board  at 
the  same  time,  it  is  usual  for  the  master,  male  or  other  person  in 
charge  of  the  deck,  and  acting  for  the  carrier,  to  give  a  receipt 
for  the  parcels  as  they  are  received  ;  and  when  the  whole  con- 
signment is  delivered,  the  master,  upon  the  receipt  being  given 
up  to  him,  makes  out  the  bill  of  lading  in  the  usual  form.  He 
should  be  careful,  however,  not  to  give  a  biU  of  ladiag  until  the 
receipts  are  given  back  to  him  ;  for  if  he  does,  he  will  render 
himself  doubly  liable  {Gosling  v.  Blrnie,  7  Bing.  339 ;  Keyser  v. 
Harbeck,  3  I)uer  [N.  Y.J,  373 ;  Merc.  Mat  Ins.  Co.  v.  Chase,  1 
E.  D.  Smith  [N.  Y.j,  115  ;  Bryans  v.  Nix,  4  Mees.  &  Wels.  775) ; 
as  he  would  also  do,  by  giving  two  bills  of  lading  for  tlie  same 
goods  to  different  persons.    Btille  v.  Trailer se.  3  Wash.  (C.  C.H3. 

§  5.  Duration  and  currency.    A  bill  of  lading  remains  in  iorce 


524  BILLS  OF  LADING. 

until  there  has  been  a  complete  delivery  of  the  goods  thereunder 
to  a  person  having  a  right  to  receive  them.  Meyer  stein  v.  Bar- 
ber, L.  E.,  2  C.  P.  38  ;  S.  C.  affirmed,  id.  661.  But  while  this  is 
the  general  rule,  there  is  nothing  final  or  irrevocable  in  the  na- 
ture of  a  bill  of  lading.  The  owner  of  the  goods  may,  therefore, 
change  his  purpose  before  the  delivery  of  the  goods  themselves 
or  of  the  bill  of  lading  to  the  party  named  in  it,  and  may  order 
the  delivery  to  be  to  some  other  person,  to  B  instead  of  to  A. 
MUcJieU  V.  Ede,  11  Ad.  &  El.  888,  902  ;  S,  C,  3  P.  &  D.  513.  But 
when  goods  have  been  put  on  board  a  ship  to  be  conveyed  on 
freight,  and  bills  of  lading  have  been  signed  by  the  master,  the 
owner  of  the  goods  cannot,  before  the  sailing  of  the  ship,  insist 
on  theii'  being  re-delivered  to  him  without  paying  the  freight 
that  would  become  due  for  their  carriage,  and  indemnifying  the 
master  against  the  consequences  of  his  signing  the  bills  of 
lading.  Tindall  v.  Taylor,  4  El.  &  Bl.  219;  S.  C,  24  L.  J., 
Q.  B;  12. 

§  6.  Negotiability.  A  bill  of  lading  is  frequently  called  a 
*'  negotiable  instrument,"  from  the  resemblance  it  bears,  in  some 
respects,  to  a  promissory  note  payable  to  order.  LicJclarrow  v. 
Mason,  2  T.  R.  63  ;  T/ie  Water  Witch,  1  Black,  494 ;  Jciikyns  v. 
Uslorne,  7  Man.  &  Gr.  678,  698  ;  McCants  v.  Wells,  4  Rich.  N. 
S.  381.  But  it  is  now  settled  that,  projjerly  speaking,  a  bill  of 
lading  is  not  a  negotiable,  but  only  a  quasi  negotiable  instru- 
ment. See  Stanton  v.  Eager,  16.  Pick.  (Mass.)  467,  474 ;  Bow- 
ley  V.  Blgelow,  12  id.  307,  814 ;  Saltus  v.  Everett,  20  Wend.  267, 
280  ;  Decan  v.  Shipper,  35  Penn.  St.  239. 

The  word  "assigns "  is  used,  and  not  the  word  "  order."  At 
common  law  the  mere  use  of  the  former  word  would  not  make  a 
chose  in  action  transferable ;  but  the  law  merchant  establishes 
an  exception  in  favor  of  bills  of  lading,  so  that  by  their  indorse- 
ment and  delivery  an  indorsee  may  suFiain  an  action  against 
the  owner  or  master  as  the  prima  facie  owner  of  the  goods 
therein  specified.  But  he  cannot,  generally,  bring  the  action  on 
the  bill  of  lading  in  his  own  name.  Thompson  v.  Dominy,  14 
Mees.  &  Wels.  402 ;  Bows  v.  Cohh,  12  Barb.  310 ;  LineTcer  v. 
Ayeshford,  1  Cal.  75  ;  Blanchard  v.  Page,  8  Gray  (Mass.),  297. 
See  Tlndal  v.  Taylor.  4  El.  &  BJ.  219 ;  S.  C,  28  Eng.  L.  &  Eq. 
210,  216.  In  admiralty,  the  assignee  may,  however,  sue  in  his 
own  name.  Cohh  v.  Hoicard,  3  Blatchf.  (C.  C.)  524.  And  see 
The  Vaughan,  14  Wall.  258;  The  Thames,  \di.  98;  McKlnlay^. 
Morrish,  21  How.  355. 


BILLS  OF  LADING.  525 

And  when  tlie  common-law  rule  has  been  changed  by  a  statute. 
as  where  it  anthorizes  an  action  to  be  brought  in  the  name  of  the 
real  jDarty  in  interest,  the  party  beneficially  interested  may  sue 
in  his  own  name.  In  New  York,  and  in  several  other  States,  this 
rule  prevails  under  the  provisions  of  the  Codes  of  Procedure. 

Goods  will  not  pass  to  third  parties  by  the  mere  delivery  of  a 
bill  of  lading  without  indorsement ;  so  the  operation  of  the  bill 
may  be  qualified  and  restricted  by  a  conditional  indorsement. 
Mitchell  V.  Ede,  11  Ad.  &  El.  903 ;  Adkerman  v.  Humphrey^  1 
C.  &  P.  57. 

§  7.  Exemption  of  risks.  The  rule  is  now  well  established  that 
the  signing  of  a  bill  of  lading,  acknowledging  to  have  received 
the  goods  in  question  in  good  order  and  well  conditioned,  is 
prima  facie  evidence  that,  as  to  all  circumstances  which  were 
open  to  inspection  and  visible,  the  goods  were  in  good  order;  but 
it  does  not  preclude  the  carrier  from  showing,  in  case  of  loss  or 
damage,  that  the  loss  proceeded  from  some  cause  which  existed, 
but  was  not  apparent  when  he  received  the  goods,  and  which,  if 
shown  satisfactorily,  will  discharge  the  carrier  from  liability. 
Nelson  v.  Woodruff,  1  Black,  156 ;  Hastings  v.  Pepper,  11  Pick. 
(Mass.)  41 ;  Richards  v.  Doe,  100  Mass.  524;  TJie  Olhers,  3  Ben.  ' 
148.  But  in  case  of  such  loss  or  damage  the  presumption  of  law 
is  that  it  was  occasioned  by  the  act  or  default  of  the  carrier,  and 
of  course  the  burden  of  proof  is  upon  him  to  show  that  it  arose 
from  a  cause  existing  before  his  receipt  of  the  goods  for  carriage, 
and  for  which  he  is  not  responsible.  Hastings  v.  Pepper,  11  Pick. 
(Mass.)  41.  In  other  words,  after  the  damage  to  the  goods  has  been 
established  the  burden  lies  upon  the  respondent  to  show  that  it  was 
occasioned  by  one  of  the  perils  from  which  they  were  exempted  by 
the  bill  of  lading.  Clark  v.  Barnwell,  12  How.  272.  And  see 
Hooper  v.  RatKbone,  Taney,  519  ;  The  Orijlamme,  1  Sawyer,  176; 
Transportation  Co.  v.  Downer,  11  Wall.  129;  CoUy.  M'Mechan^ 
6  Johns.  160 ;  The  Juniata  Paton,  1  Biss.  15  ;  Bissell  v.  Price, 
16  111.  408;  Grieffv.  Switzer,  11  La.  Ann.  324.  But  if  the  bill 
of  lading  contains  the  clause  "  loss  by  breakage  or  leakage  ex- 
cepted," this  rule  is  changed,  and  under  such  a  bill  the  shipper, 
in  order  to  recover  for  leakage,  must  make  affirmative  proof  of 
negligence  on  the  part  of  the  carrier.  Tfiomas  v.  Ship  Morning 
Glory,  13  La.  Ann.  269;  The  Imincihle,  1  Low,  225;  Ohrloffv. 
Briscall,  L.  R.,  1  P.  C.  231. 

Where  goods  were  laden  on  board  a  ship,  the  bill  of  lading 
containing  an  exception  of  "the  perils  of  the  seas,"  and  the 


526  BILLS  OF  LADING. 

ship  ran  foul  of  another  ship  without  any  fault  in  the  master  of 
either,  it  was  held  to  be  an  injury  by  the  perils  of  the  sea  within 
the  exception.  Buller  v.  FisTier^  Peake's  Ad.  Gas.  183.  But  it 
is  otherwise  if  the  loss  of  goods  occur  by  reason  of  a  collision 
caused  by  the  gross  negligence  of  the  master  or  crew.  Lloyd  v. 
General  Iron  Screio  Collier  Company^  3  H.  &  C.  284.  So,  the 
explosion  of  a  boiler  on  a  steam  vessel  is  held  not  "one  of  the 
perils  of  navigation,"  within  the  usual  exception  in  a  bill  of 
lading.     The  MohawTc,  8  Wall.  153. 

It  is  stated  as  a  general  principle,  that  if  the  bill  of  lading  is 
accepted  by  the  consignor  without  objection  to  its  terms,  any 
conditions  which  it  may  contain,  restrictive  of  the  carrier's  lia- 
bility, if  such  as  the  law  will  allow  to  be  made  by  an  express 
contract,  become  binding  upon  him.  Grace  v.  Adams ^  100  Mass. 
505.  See  Bostwick  v.  Baltimore,  etc.,  R,  R.  Co.,  45  N.  Y.  (6 
Hand)  712.  And  this  principle  has  been  applied  to  an  ordinary 
express  receipt,  given  by  an  express  company,  and  containing 
a  stipulation  that  the  company  should  not  be  liable  for  any  loss, 
etc.,  occasioned  by  the  dangers  of  railroad  transportation,  or 
ocean  or  river  navigation,  or  by  fire  or  steam.  lb.  See  post, 
§  17 ;  Farnham  v.  Camden,  etc.,  R.  R.  Co.,  55  Penn.  St.  63. 

§  8.  Eights  of  shipper  of  property.  The  delivery  of  a  biU  of 
lading  should  be  as  effectual  as  the  delivery  of  the  goods  them- 
selves. Meyerstein  v.  Barher,  L.  R.,  2  C.  P.  38,  44.  But  in 
order  to  render  the  bill  of  lading  equivalent  to  the  possession  of 
the  goods  which  it  represents,  it  must  be  obtained  from  the  true 
owner,  or  from  some  one  duly  authorized  by  him,  or  by  virtue 
of  some  act  on  his  part  which  justifies  the  belief  that  such 
authority  has  been  given.  Western  Trans.  Co.  v.  Marshall,  24 
N.  Y.  (10  Smith)  638.  And  the  unauthorized  delivery  of  a  bill 
of  lading  by  the  master  of  a  vessel,  or  by  an  agent  to  whom  it 
hias  been  intrusted  for  a  temporary  or  special  purpose,  or  with 
instructions  not  to  deliver  it  except  on  terms  which  are  not  ful- 
filled, followed  by  its  indorsement  to  a  hona  fide  purchaser,  will 
not  raise  the  title  of  the  latter  higher  than  that  of  the  indorser, 
or  preclude  the  vendor  from  stopping  the  goods  in  transitu,  or 
from  rescinding  the  contract.  lb. ;  Craven  v.  Ryder,  6  Taunt. 
433 ;  Blossom  v.  Champion,  37  Barb.  554 ;  LicJcbarrow  y.  Mason, 
1  Sm.  Lead.  Gas.  900 ;  Decan  v.  Shipper,  35  Penn.  St.  243. 

§  9.  Rights  of  indorsee  or  holder.  The  delivery  of  a  bill  of 
lading  indorsed  puts  it  in  the  power  of  the  indorsee  to  transfer 
the  property  to  a  bona  fide  purchaser  for  a  valuable  consideration. 


BILLS  OF  LADING.  527 

and  deprives  the  original  owner  of  any  right  of  stoppage  in  tro.n- 
situ.  Jeiikyns  v.  Usborne.  7  Man.  &  Grang.  678;  13  L.  J.,  C.  P.  196; 
Newsom  v.  TJiornton,  6  East,  41 ;  Dotos  v.  Greene,  24  N.  Y.  (10 
Smith)  638.  When  the  goods  are  shipped  or  afloat  the  bill  of 
lading  represents  them,  and  the  indorsement  and  delivery  of  it  has 
exactly  the  same  effect  as  the  delivery  of  the  goods  themselves, 
when  the  intention  is  to  transfer  thereby  the  title  to  the  goods,  or 
to  pledge  them  by  way  of  security  for  advances  made,  or  other- 
wise. Meyer  stein  v.  Barter,  L.  R.,  2  C.  P.  661 ;  Indiana,  etc., 
BanJc  V.  Colgate,  4  Daly  (N.  Y.),  41 ;  Marine  BanTc  v.  WrigTit, 
48  N.  Y.  (3  Sick.)  1 ;  First  Nat  Bank  of  Cincinnati  v.  Kelly, 
57  N.  Y.  (12  Sick.)  34.  So,  in  the  absence  of  a  bill  of  lading, 
the  intention  to  vest  the  property  in  the  goods  in  the  consignee 
upon  the  shipment,  so  as  to  give  him  a  constructive  possession, 
subject  only  to  the  equitable  right  of  stoppage  in  transit,  may 
be  inferred  from  other  documents,  such  as  receipts,  or  orders,  or 
by  the  correspondence  which  has  taken  place  between  the  par- 
ties. Heard  v.  Brewer,  4  Daly  (N.  Y.),  136 ;  PhiladelpMa,  etc., 
R.  a.  Co.  V.  Barnard,  3  Ben.  39.  See  Stanton  v.  Eager,  16 
Pick.  (Mass.)  467  ;  Fragano  v.  Long,  4  B.  &  C.  219  ;  Brandt  v. 
Bowlby,  2  B.  &  Ad.  932. 

§  10.  Who  is  a  bona  fide  holder.  The  transfer  of  a  bill  of  lading 
must  be  for  value,  and  not  a  mere  security  for  an  antecedent  debt. 
Lee  V.  Kimball,  45  Me.  172  ;  HolbrooTc  v.  Yose,  6  Bosw.  (N.  Y.) 
76,  107 ;  and  see  Harris  v.  Heard,  6  Duer  (N.  Y.),  606 ;  Diir- 
horroio  v.  McDonald,  5  Bosw.  150.  And  the  value  must  be 
given  in  good  faith,  without  notice  of  any  fact  or  circumstance 
showing  that  the  indorsement  is  in  fraud  of  the  original  vendor. 
The  Argentina,  1  L.  R.,  Adm.  370,  See  Holbrook  v.  Vose,  6 
Bosw.  (N.  Y.)  67,  109.  But  the  mere  fact  that  goods  which  are 
in  transitu  were  bought  on  credit  and  have  not  been  paid  for,  is 
no  reason  why  they  should  not  be  resold,  because  this  may  be 
the  best  method  of  procuring  the  means  to  pay,  and  it  may  fairly 
'hQ  presumed  the  bill  of  lading  was  transmitted  to  the  purchaser 
with  that  view.  lb.;  Cummings  v.  Brown,  9  East,  506  ;  2  Sm. 
Lead.  Cas.  890.  Notice  of  the  vendee's  insolvency,  and  that  the 
vendor  has  not  been  paid,  would  seem  to  be  sufficient  to  put 
third  persons  on  their  guard,  and  render  any  title  that  they  may 
acquire  by  the  indorsement  of  the  bill  liable  to  be  defeated  by  a 
subsequent  stoppage.  lb.;  The  Argentina,  1  L.  R.,  Adm.  370  ; 
Holbrook  V.  Vose,  6  Bosw.  (N.  Y.)  76, 109.  But  this  can  be  true 
only  while  the  transit  continues,  and  has  no  application  after  the 


628  BILLS  OF  LADING. 

cargo  arrives.  Stevens  v.  WJieeler,  27  Barb.  658.  The  unpaid 
vendor  cannot,  therefore,  reclaim  his  property  from  an  assignee 
for  the  benefit  of  his  creditors,  who  has  succeeded  in  obtaining 
an  actual  or  constructive  possession,  although  the  conduct  of  the 
latter  shows  that  he  knew  that  the  vendee  was  insolvent,  and 
did  not  pay  for  the  goods.  Jones  v.  Jones^  8  Mees.  &  Wels. 
431 ;   Whitehead  v.  Anderson,  9  id.  518,  534. 

So,  it  has  been  held  that  one  who  buys  or  makes  advances 
bona  fide  on  the  faith  of  an  indorsement  of  the  bill  of  lading 
by  a  fraudulent  vendee,  will  acquire  a  good  title  against  the 
original  vendor  {Dows  v.  Greene,  32  Barb.  493  ;  Rowley  v.  Bige- 
low,  12  Pick.  [Mass.]  387);  and  this  on  the  ground  that  sales 
induced  by  fraud  are  voidable,  not  void,  and  cannot  be  set  aside 
to  the  injury  of  an  innocent  purchaser.  The  principle  is  said 
not  to  apply,  however,  where  the  bill  of  lading  itself  is  procured 
by  deceit  or  artifice  {Dows  v.  Perrin,  16  N.  Y.  [2  Smith]  325  ; 
Barnard  v.  Campbell,  55  N.  Y.  [10  Sick.]  456,  462) ;  or  where 
the  fraud  consists  in  an  assertion  that  the  purchaser  is  acting  as 
agent  for  a  third  person,  who  did  not  authorize  him  to  buy. 
Becan  v.  Shipper,  35  Penn.  St.  239,  244 ;  2  Sm.  Lead.  Cas.  890. 
But  see  Keyser  v.  Harbedk,  3  Duer  (N.Y.),  391 ;  Rowley  v.  Bige- 
low,  12  Pick.  (Mass.)  387. 

§  11.  Bight  of  vendor  or  consignor  to  stop  in  transitu.  It  was 
settled,  as  a  rule  of  commercial  law,  in  the  important  case  of 
Lickbarrow  v.  Mason,  6  East,  21  ;  S.  C,  2  T.  R.  63  ;  1 H.  Bl.  357 ; 
2  id.  211  ;  5  T.  R.  317,  683,  that  the  right  to  stop  goods  while  on 
their  way  to  an  insolvent  buyer,  may  be  defeated  by  a  sale  to  a 
third  person,  attended  by  a  transfer  or  indorsement  of  the  bill 
of  lading  ;  and  this  rule  has  been  frequently  recognized  since  as 
the  established  law  by  the  courts,  both  in  England  and  in  this 
country.  See  Gurney  v.  Behrend,  3  EL  &  Bl.  622 ;  Pennell  v. 
Alexander,  id.  282 ;  Meyerstein  v.  Barber,  L.  R.,  2  C.  P.  38 ; 
Newsom  v.  Thornton,  6  East,  17;  Jordon  v.  James,  5  Ham. 
(Ohio)  88,  219  ;  Lee  v.  Kimball,  45  Me.  172 ;  Schumaker  v.  Ely^ 
24  Penn.  St.  521 ;  Holbroolc  v.  Yose,  6  Bosw.  (N.  Y.)  76,  109  ; 
Dows  V.  Greene,  24  N.  Y.  (10  Smith)  638.  So,  the  same  effect  will 
follow  from  a  loan  or  advance  on  the  faith  of  such  an  indorse- 
ment, or  from  any  other  transaction  which,  though  not  a  sale  in 
the  ordinary  sense  of  the  term,  yet  places  the  indorsee  in  the 
position  and  invests  him  with  the  rights  of  a  purchaser  for 
value.  lb.;  Blossom  v.  CJiampion,  28  Barb.  217 ;  lAckbarrow 
V.  Mason,  1  Sm.  Lead.  Cas.  889.    The  transfer  of  the  bill  of 


BILLS  OF  LADING.  529 

lading,  under  such  circumstances,  gives  rise  to  an  equity  which 
is  superior  to  that  of  the  vendor,  and  may  not  only  preclude 
the  latter  from  arresting  the  transit  of  goods  v^^hich  had  been 
forwarded,  but  from  making  payment  a  condition  precedent  to 
the  delivery  of  merchandise  which  is  still  in  his  own  keeping, 
lb.;  Dows  V.  Rush,  28  Barb.  157.  See  Walter  v.  Ross,  2  Wash. 
(C.  C.)  283 ;  Winslow  v.  Norton,  29  Me.  419  ;  Conrad  v.  Atlantic 
Ins.  Co.,  1  Pet.  386. 

The  assignment  of  the  bill  of  lading  in  bona  fide  furtherance 
of  a  contract,  conferring  an  interest  in  the  goods  for  a  valuable 
consideration,  has,  as  it  regards  the  question  of  stoppage  in 
transitu,  the  same  effect  at  law  that  an  actual  delivery  of  the 
goods  would  have  had.  Gardner  v.  Rowland,  2  Pick.  599 ; 
Indiana,  etc..  Bank  v.  Colgate,  4  Daly  (N.  Y.),  41 ;  Meyerstein 
V.  Barber,  L.  R.,  2  C.  P.  45 ;  The  Thames,  14  Wall.  98,  106.  But 
the  mere  receipt  of  the  bill  of  lading  by  the  original  consignee 
and  vendee  and  remaining  in  his  hands,  unindorsed,  does  not  in 
any  way  interfere  with  or  defeat  the  right  of  stoppage  in  tran- 
situ of  the  consignor  and  vendor.  Tucker  v.  Humphrey,  4 
Bing.  516,  522 ;  Stanton  v.  Eager,  16  Pick.  (Mass.)  474 ;  Schol- 
field  V.  Bell,  14  Mass.  40. 

§  12.  Who  not  a  holder  for  value.  A  bill  of  lading,  given  by 
the  master  before  the  goods  *re  put  on  board  the  ship,  is  held 
to  be  fraudulent,  and  the  indorsement  of  the  bill  will  convey  no 
property  in  the  goods,  even  to  a  bona  fide  indorsee  {Llckbarrow 
V.  Mason,  2  T.  R.  63,  75.  See  ante,  §  4) ;  and  much  less  if  the 
indorsee  knows  that  the  transaction  on  the  part  of  the  consignee 
is  fraudulent  and  dishonest.  Thus,  if  he  connive  with  the  latter 
in  contravening  the  actual  terms  of  the  sale,  or  the  rights  of  the 
consignor,  he  will  stand  in  no  better  position  than  the  consignee 
or  indorser,  and  his  claim  will  not  be  allowed  to  defeat  the  con- 
signor's right  of  stoppage  in  transitu.  Salomons  v.  JVissen,  2 
T.  R.  674 ;  Cuming  v.  Brown,  9  East,  506 ;  Stanton  v.  Eager, 
16  Pick.  (Mass.)  467,  476. 

§  13.  Pledging.  The  mere  pledging  of  a  bill  of  lading  by  the 
vendee  as  a  security  for  a  debt  does  not  operate  absolutely  to 
defeat  the  vendor's  right  of  stoppage  in  transitu.  Chandler  v. 
Fulton,  10  Tex.  2.  TJie  vendor  may  still  assert  his  interest  in 
the  goods,  subject  to  the  rights  of  the  pledgee,  and  will  be  enti- 
tled, at  least  in  equity,  to  the  residue,  after  satisfaction  of  the 
pledgee's  claim.  See  Coventry  v.  Gladstone,  L.  R.,  6  Eq.  48; 
Spalding  v.  Ruding,  6  Beav.  376 ;  flatter  of  Westzlnthus^  5 

Vol.  I.  —  67 


530  BILLS  OF  LADING. 

Barn.  &  Ad.  817.  And  in  England  the  vendor's  right  of  stop- 
page in  transitu  is  not  defeated  by  a  transfer  of  a  bill  of  lading 
where  the  consideration  for  the  indorsement  is  a  pre-existing 
debt  {Rodger  v.  The  Comptolr  D' Escompte  de  Paris,  5  Moore's 
P.  C.  [N.  S.]  538;  S.  C,  L.  R.,  2.P.  C.  393;  8  Eng.  R.  [Moak's 
Ed.]  209) ;  though  it  has  been  held  otherwise  in  this  country. 
Lee  V.  Kimball,  45  Me.  172. 

§  14.  Lien  of  shipping  agent.  A  shipping  agent  having  a  lien 
on  the  bill  of  lading  of  goods  which  he  has  shipped,  may,  if 
the  lien  is  not  satisfied  before  the}''  have  reached  their  destination, 
have  the  goods  brought  home  in  order  to  retain  his  lien  upon 
them,  and  is  not  liable  to  an  action  for  so  doing.  Edwards  v. 
Southgate,  10  W.  R.  (Eng.)  528.  Where  the  consideration  for 
the  indorsement  of  the  bill  of  lading  by  the  vendee  was  the  ad- 
vance of  money  by  the  indorsee,  it  was  held  that  the  vendor  still 
retained  an  equitable  right  of  quasi  stoppage  in  transitu,  sub- 
ject, however,  to  the  right  of  the  indorsee  to  be  paid  his  advances. 
But,  if  the  indorsee  has  other  property  of  the  vendee  in  his 
hands,  he  is  bound  to  repay  himself  from  that ;  and  if  he  does 
not,  but  retains  the  goods  sold  for  this  purpose,  the  vendor  him- 
self acquires  a  lien  on  such  other  property  for  the  price  of  the 
goods.  Chandler  v.  Fulton,  10  Tex.  2 ;  Matter  of  Westzinthus, 
5  Barn.  &  Ad.  817. 

§  15.  Presentation  and  production.  The  bill  of  lading  should 
be  delivered  as  soon  after  its  arrival  as  possible,  without  refer- 
ence to  the  arrival  or  unloading  of  the  goods.  Barber  v.  Tay- 
lor, 5  Mees.  &  Wels.  527.  After  waiting  a  reasonable  time  at 
a  foreign  port,  and  "no  one  having  produced  the  bill  of  lading, 
the  master  may  deliver  the  goods  into  the  keeping  of  some  per- 
son until  the  bill  of  lading  is  produced.  Howard  v.  Shepherd, 
9  C.  B.  297  ;  19  L.  J.,  C.  P.  249.  See  Green  v.  Sichel,  29  id.  213  ; 
S.  C,  7  C.  B.  (N.  S.)  747. 

If  A  has  an  equitable  title  to  goods  on  board  a  ship,  and  B, 
knowing  of  such  title,  gets  an  indorsement  of  the  bill  of  lading, 
he  cannot  recover  such  goods  in  an  action  of  trover,  but  the  cap- 
tain will  be  justified  in  delivering  the  goods  to  A.  Dick  v.  Lums- 
den,  Peake,  189. 

§  16.  How  affected  or  varied  by  parol  evidence.  A  bill  of  lading 
partakes  of  the  nature  both  of  a  receipt  and  a  contract,  and,  so 
far  as  it  is  a  receipt,  it  has  always  been  held  that  it  was  not  con- 
clusive but  was  open  to  explanation  between  the  original  parties. 
Bates  V.  Todd,  1  M.  &  Rob.  106  ;  O'Brien  v.  Gilchrist,  34  Me. 


BILLS  OF  LADING.  531 

654 ;  The  Lady  FranTdin,  8  Wall.  325 ;  The  Delaware,  14  id. 
601 ;  The  J.  W.  Brown,  1  Biss.  76  ;  Cafiero  v.  Welsh,  1  Penn. 
Leg.  Gaz.  R.  121.  Thus,  as  to  the  quantity  of  goods  delivered 
to  a  carrier,  the  bill  of  lading  furnishes  2?rima  facie  evidence 
only,  and  is  always  open  to  contradiction  and  explanation  by 
parol  evidence,  like  any  receipt.  Abbe  v.  Eaton,  51  N.  Y.  (6 
Sick.)  410  ;  Wayland  v.  Mosely,  5  Ala.  480  ;  Bissel  v.  Price,  16 
111.  408.  The  rules  that  should  govern  it  in  its  character  of  a 
receipt  have  been  thus  stated  in  a  Massachusetts  case : 

First.  The  receipt  in  the  bill  of  lading  is  open  to  explanation 
between  the  master  and  the  shipper  of  the  goods. 

Secondly.  The  master  is  estopped,  as  against  a  consignee  who 
is  not  a  party  to  the  contract,  and  as  against  an  assignee  of  the 
bill  of  lading,  when  either  has  taken  it  for  a  valuable  considera- 
tion upon  the  faith  of  the  acknowledgments  which  it  contains, 
to  deny  the  truth  of  the  statements  to  which  he  has  given  credit 
by  his  signature,  so  far  as  those  statements  relate  to  matters 
which  are,  or  ought  to  be,  within  his  knowledge. 

Thirdly.  When  the  master  is  acting  within  the  limits  of  his 
authority,  the  owners  are  estopped  in  like  manner  with  him  ; 
but  it  is  not  within  the  general  scope  of  the  master's  authority 
to  sign  bills  of  lading  for  any  goods  not  actually  received  on 
board.  Hoae,  J.,  in  Sears  v.  Wingate,  3  Allen  (Mass.),  103. 
And  see  Warden  y.  Greer,  6  Watts  (Penn.),  424  ;  Portland 
Bank  v.  Stubbs,  6  Mass.  425  ;  Sutton  v.  Kettell,  1  Sprague,  309 ; 
DicJcerson  v.  Seelye,  12  Barb.  102. 

In  its  character  of  a  contract,  a  bill  of  lading  is  no  more  open 
to  alteration  or  explanation  by  parol  than  are  other  contracts. 
Wolfe  V.  Mijers,  3  Sandf.  (N.  Y.)  7;  The  Lady  FranJcUn,  8 
Wall.  325;  Barber  v.  Brace,  3  Conn.  9.  Thus,  if  the  bill  of 
lading  state  that  the  property  was  to  go  to  Liverpool,  the  master 
cannot  prove  that  by  verbal  agreement  it  was  to  be  sent  to  London. 
Wolfe  V.  Myers,  3  Sandf.  7,  13.  Nor  is  parol  evidence  admissi- 
ble to  prove  an  agreement  that  the  vessel  might  deviate  {May  v. 
Babcock,  4  Ohio,  334) ;  and  generally  such  evidence  is  inadmissi- 
ble to  vary,  in  any  manner,  the  terms  of  the  bill  of  lading  in  its 
character  of  a  contract  (ib.;  Shaw  v.  Gardner,  12  Gray  [Mass.], 
488 ;  Cincinnati,  etc.,  M.  R.  Go.  v.  Pontiles,  19  Ohio  St.  221 ; 
Cox  V.  Peterson,  30  Ala.  608  ;  WJiite  v.  Van  Kirk,  25  Barb.  16) ; 
though  it  may  be  admitted  in  explanation  of  an  ambiguity. 
See  Chouteau  v.  Leech,  18  Penn.  St.  224 ;  Butler  v.  The  Arrow^ 


532  BILLS  OF  LADING. 

1  Newb.  Adm.  59 ;  Russian  Steam  Nav.  Co.  v.  SiUa,  13  C.  B. 
(N.  S.)  616 ;  Barnard  v.  Kellogg,  10  Wall.  383. 

A  "clean"  bill  of  lading,  that  is,  a  bill  of  lading  which  is 
silent  as  to  the  place  of  stowage,  imports  a  contract  that  the 
goods  are  to  be  stowed  under  deck.  This  being  so,  parol  evi- 
dence of  an  agreement  that  they  were  to  be  stowed  on  deck  is 
inadmissible.  The  Delaware,  14  Wall.  579  ;  and  see  The  Well- 
ington, 1  Biss.  279.  It  has  been  held  that  the  mere  delivery  by 
a  shipper,  without  examination,  of  a  bill  of  lading,  limiting  the 
carrier' s  liability,  and  expressing  on  its  face  that,  by  accepting 
it,  the  shipper  agrees  to  its  provisions,  after  the  goods  have  been 
actually  shipped  under  a  verbal  agreement,  does  not  conclude 
the  plaintiff  from  showing  the  actual  agreement.  The  rule  that 
prior  negotiations  are  merged  in  a  subsequent  written  contract 
does  not  apply.  BostwicTcY.  Baltimore,  etc.,  R.  R.  Co.,  45  N. 
Y.  (6  Hand)  712  ;  reversing  S.  C,  55  Barb.  137  ;  Lamh  v.  Cam- 
den &  Amboy  R.  R.  Co.,  4  Daly  (N.  Y.),  483.  But  see  Long  v. 
JSr.  T.  C.  R.  R.  Co.,  50  N.  Y.  (5  Sick.)  76  ;  Hinckley  v.  N.  Y.  Cen. 
(&  If.  Rio.  R.  R.  Co.,  56  N.  Y.  (11  Sick.)  429 ;  Huntington  v. 
Dinsmore,  6  N.  Y.  S.  C.  (T.  &  C.)  195  ;  S.  C,  4  Hun,  66  ;  Collen- 
der  V.  Dinsmore,  55  N.  Y.  (10  Sick.)  200  ;  Magnin  v.  Dinsmore, 
^^  N.  Y.  (11  Sick.)  168,  in  all  of  which  cases  the  general  rule  is 
sustained  that  where  a  shipper  of  property  takes  from  the  carrier 
a  bill  of  lading,  receipt  or  other  voucher,  expressing  the  terms 
and  conditions  upon  which  the  property  is  to  be  transported, 
the  writing,  in  the  absence  of  proof  of  fraud  or  mistake,  must 
be  taken  as  the  evidence,  and  the  sole  evidence,  of  the  final 
agreement  of  the  parties,  and  by  it  their  duties  and  liabilities 
must  be  regulated.  Resort  cannot  be  had  to  prior  parol  negotia- 
tions'to  vary  its  terms.     See  also,  ante,  525,  §  7,  and  cases  cited. 

§  17.  Legal  remedies.  An  indorsee  of  a  bill  of  lading  has  a 
right,  founded  on  his  ownership  of  the  goods,  to  sustain  an 
action  against  the  owner  or  master,  but  he  cannot,  generally, 
bring  the  action  on  the  bill  of  lading  in  his  own  name.  See 
Thompson  v.  Dominy,  14  Mees.  &  Welsb.  402 ;  Tindal  v.  Taylor, 
4  El.  &  Bl.  219  ;  ante,  524,  §  6.  As  a  general  rule,  a  suit  founded 
upon  the  express  contract  contained  in  the  bill  of  lading,  should 
be  brought  by  the  shipper  with  whom  the  master  contracted,  or 
by  the  owner  of  the  goods,  in  a  case  where  the  shipper  acted  as 
his  agent.  Berkley  v.  Watting,  7  Ad.  &  El.  29.  And  a  consignee 
or  indorser  of  a  bill  of  lading  has  not  the  right  to  sue  upon  the 
special  contract,  unless  he  is  also  the  shipper  or  owner  of  the 


BILLS  OF  LADING.  533 

goods,  for  the  obvious  reason  that  otherwise  no  express  contract 
is  made  with  him.  Anderson  v.  Clark,  2  Bing.  20  ;  Bows  v. 
Cobb,  12  Barb.  310;  S.  C,  10  N.  Y.  Leg.  Obs.  161. 

K  bills  of  lading  are  presented  to  the  master  by  two  different 
holders,  and  he  delivers  to  one,  a  right  of  action  against  him 
accrues  to  the  disappointed  holder,  as  it  is  for  the  master  to 
inquire  who  has  the  best  right.  The  Tigress,  32  L.  J.  (Ad.)  97  ; 
2  Tudor's  Lead.  Cas.  673. 

§  18.  Equitable  remedies.  It  has  been  doubted  whether  a  bill 
of  interpleader  would  lie  at  the  suit  of  a  captain  of  a  trading 
vessel  against  a  party  claiming,  not  under,  but  paramount  to, 
the  bill  of  lading,  on  the  ground  that  delivery,  according  to  the 
bill  of  lading,  would  fully  justify  the  captain.    Zowe  and  RicTi- 

ardson  v. ,  3  Madd.  278.     In  a  more  recent  case,  however,  it 

was  thought  that  such  a  bill  would  lie,  as  the  right  of  possession 
in  chattels  may  be  in  one  person,  and  the  right  of  property  in 
another.     Warington  v.  Wheatstone,  Jac.  202. 


634  BILLS  AND  NOTES. 

CHAPTER  XXIV. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 
ARTICLE  L 

GEFEEAL   PRINCIPLES   AND   DEFINITIONS. 

Section  1.  In  generaL  Bills  of  exchange  and  promissory  notes 
are  so  mucli  alike,  in  many  respects,  that  a  separate  discussion 
of  each  subject  would  lead  to  a  useless  repetition.  For  that 
reason  they  will  be  treated  of  together,  though  the  peculiarities 
of  each  will  be  pointed  out  with  distinctness.  In  the  first  place 
a  definition  will  be  given  of  the  more  important  terms  which  are 
used  in  relation  to  bills  and  notes.  In  this  definition  nothing 
more  is  intended  to  be  stated  than  merely  to  define  the  terms 
employed.  But  in  a  subsequent  place,  the  rights  and  duties  of 
the  parties  to  a  bill  or  note  will  be  discussed  and  illustrated  by 
a  reference  to  the  adjudged  cases. 

A  hill  of  exchange  is  a  written  order  or  request  by  one  person 
to  another,  for  the  payment  of  a  particular  surn  of  money  at  a 
specified  time,  absolutely  and  at  all  events,  to  the  person  named 
in  the  bill  as  payee.  Luff  v.  Pope,  5  Hill,  413;  7  id.  577.  A 
bill  of  exchange  is  sometimes  termed  a  draft  in  popular  lan- 
guage. Both  names  signify  the  same  thing,  and  the  same  rules 
of  law  are  applicable  to  the  instrument,  by  whatever  name  it 
may  be  called. 

A  promissory  note  is  a  written  promise  by  one  person  for  the 
payment  of  money  to  another  person  therein  named,  at  another 
specified  time,  absolutely  and  at  all  events. 

A  check  is  an  inland  bill  of  exchange  drawn  upon  a  bank  or  a 
banker,  and  payable  to  the  bearer  or  to  the  order  of  the  payee. 
The  giving  and  presenting  of  a  check  for  money,  deposited  for 
safe-keeping,  operates  as  a  demand  of  the  sum  specified  in  it. 
Clieney  v.  Beats,  47  Barb.  523.  A  check  in  the  ordinary  general 
form,  which  does  not  describe  any  particular  fund,  nor  use  any 
words  of  transfer  of  the  whole  or  any  part  of  the  account  stand- 
ing to  the  credit  of  the  drawer,  is  in  legal  effect  a  bill  of 
exchange,  and  does  not  amount  to  an  assignment  of  the  funds 
of  the  drawer   in  tlie  bank  drawn  upon.     Lunt  v.  Bank  of 


BILLS  AND  NOTES.  635 

North  America^  49  Barb.  221 ;  Mtna  National  Bank  v.  Fourth 
National  BanTc,  46  N.  Y.  (1  Sick.)  82 ;  7  Am.  Rep.  314.  See 
ante,  Banks  and  Banking. 

A  banTc  Mil  or  note  is  simply  a  promissory  note,  made  and 
issued  by  a  bank  or  a  banker,  and  payable  to  the  bearer  on 
demand. 

Bills  of  exchange  are  either  foreign  or  inland;  they  are  for- 
eign when  drawn  by  a  person  in  one  State  or  country  upon  a 
person  in  another  State  or  country,  and  they  are  inland,  when 
both  the  drawer  and  the  drawee  reside  in  the  same  State  or 
country,  and  when  both  drawn  and  payable  in  the  same  State 
or  country,  though  accepted  abroad. 

Bills  drawn  by  a  resident  of  one  State  of  the  Union  upon  a 
resident  of  another  State  therein,  will  be  considered  a  foreign 
bill,  and  subject  to  the  rules  which  are  applicable  to  such  bills. 
Bills  and  notes  are  divided  into  those  which  are  negotiable,  and 
those  which  are  not  negotiable.  A  negotiable  instrument  is  one 
which  may  be  transferred  by  indorsement,  or  delivery,  so  as  to 
give  a  right  of  action  to  the  person  to  whom  it  is  so  indorsed  or 
delivered  in  his  own  name,  and  upon  the  instrument  so  trans- 
ferred. The  rules  of  the  common  law  did  not  permit  ordinary 
unnegotiable  choses  in  action  to  be  assigned  by  one  person  to 
another,  so  as  to  authorize  an  action  in  the  name  of  the  assignee. 
But  the  Code,  §§  111,  112,  113,  has  changed  the  rule ;  and  now 
every  action  must  be  brought  in  the  name  of  the  person  who  is 
the  real  party  in  interest. 

The  term  negotiable  instrument  has  a  definite  signification  in 
the  law  merchant.  And  the  meaning  of  the  term  has  not  been 
changed  by  the  Code.  A  note  payable  in  chattels  may  now  be 
assigned,  and  the  assignee  may  enforce  its  collection  in  his  own 
name;  but  that  fact  will  not  render  the  note  a  negotiable  one. 
For  all  purposes,  and  as  to  all  the  rights  of  the  parties  to  bills 
and  notes,  the  law  in  relation  to  negotiability  remains  unchanged, 
except  in  the  single  fact  that  actions  may  now  be  brought  in  the 
name  of  the  party  interested  in  them. 

In  a  bill  of  exchange,  there  are  usually  three  original  parties, 
the  drawer,  the  payee,  and  the  drawee,  who,  after  acceptance, 
becomes  the  acceptor.  In  a  promissory  note,  there  are  but  two 
original  parties,  the  maker  and  the  payee.  In  a  bill  of  exchange 
the  acceptor  is  in  contemplation  of  law  the  primary  debtor. 
When  a  negotiable  note  has  been  indorsed  by  the  payee,  then 
tliere  occuis  a  striking  resemblance  in  the  relations  of  the  parties 


536  BILLS  AND  NOTES. 

upon  both  instruments,  although  they  are  not  in  all  respects 
identical.  The  indorser  of  a  note  stands  in  the  same  relation  to 
the  subsequent  parties  to  it  as  the  drawer  of  a  bill;  and  the 
maker  of  a  note  is  under  the  same  liabilities  as  the  acceptor  of  a 
bill.  The  maker  is  the  principal  debtor  in  a  promissory  note, 
who  signs  it  as  such  on  the  face  of  the  note,  and  promises  to  pay 
it  when  due. 

The  payee  is  the  person  to  whom  a  promissory  note  is  made 
payable,  or  the  person  in  whose  favor  a  bill  of  exchange  is 
drawn. 

An  indorser  is  one  who  writes  his  name  on  a  bill  of  exchange, 
or  a  promissory  note,  or  other  negotiable  paper.  He  undertakes 
to  be  responsible  to  the  holder  for  the  amount  of  the  bill  or  note, 
if  the  latter  shall  make  a  legal  demand  of  the  payer,  and  in 
default  of  payment  give  proper  notice  to  such  indorser.  An 
indorsee  is  the  person  in  whose  favor  an  indorsement  is  made. 

The  holder  of  a  bill  of  exchange  or  of  a  promissory  note  is 
the  person  who  is  legally  in  possession  of  it,  either  by  indorse- 
ment or  delivery,  or  both,  and  entitled  to  receive  payment  either 
from  the  drawer  or  acceptor,  or  the  maker. 

The  drawer  is  the  person  who  makes  a  bill  of  exchange.  The 
drawee  is  the  person  to  whom  a  bill  of  exchange  is  addressed, 
and  who  is  requested  to  pay  the  amount  of  money  therein  men- 
tioned. 

The  acceptor  is  the  person  who  agrees  to  pay  a  bill  of  exchange 
drawn  upon  him.  Acceptance  is  the  act  by  which  the  drawee  or 
other  person  evinces  his  assent  or  intention  to  comply  with,  and 
be  bound  by,  the  request  contained  in  a  bill  of  exchange  to  pay 
the  same;  or,  in  other  words,  it  is  an  engagement  to  pay  the  bill 
when  due.  An  indorsement  is  the  act  of  writing  the  indorser' s 
name  upon  the  back  or  a  bill  of  exchange  or  a  promissory  note. 
It  also  signifies  the  writing  of  the  indorser. 

An  illustration  of  the  use  of  a  bill  of  exchange  may  render  the 
subject  more  intelligible.  If  A,  living  in  New  York,  wishes  to 
receive  one  thousand  dollars,  which  await  his  orders  in  the  hands 
of  B,  in  London,  he  applies  to  C,  going  from  New  York  to 
London,  to  pay  him  one  thousand  dollars,  and  take  his  draft  on 
B  for  that  sum,  payable  at  sight. 

This  is  an  accommodation  to  all  parties,  A  receives  his  debt 
for  transferring  it  to  C,  who  carries  his  money  across  the  Atlan- 
tic in  the  shape  of  a  bill  of  exchange,  without  any  danger  or  risk 
in  the  transportation  ;  and  on  liis  arrival  at  London,  he  presents 


BILLS  AND  NOTES.  537 

tlie  bill  to  B  and  is  paid.  This  illustration  introduces  all  the 
parties  to  a  bill  of  exchange.  A,  who  draws  the  bill,  is  called 
the  drawer^  B,  to  whom  it  is  addressed,  is  called  the  drawee^  and 
on  acceptance  he  becomes  the  acceptor ;  C,  to  whom  the  bill  is 
made  payable,  is  called  the  payee.  As  the  bill  is  payable  to  C 
or  his  order,  he  may,  by  indorsement,  direct  the  bill  to  be  paid 
to  D,  and  in  that  case  C  becomes  the  indorser,  and  D,  to  whom 
the  bill  is  indorsed,  is  called  the  indorsee  or  holder.  It  is  impor- 
tant to  be  remembered  that  the  acceptor  of  a  bill  of  exchange  is 
the  principal  debtor,  while  the  indorsers  are  regarded  as  mere 
sureties,  and  even  the  drawer  of  the  bill  is  regarded  as  a  mere 
surety  for  the  acceptor.  The  maker  of  a  note  and  the  acceptor 
of  a  bill  are  always  the  principal  debtors  so  far  as  the  holder  of 
the  paper  is  concerned.  The  holder,  however,  may  recover  the 
amount  of  the  bill  of  either  or  all  the  parties  to  it,  unless  he  is 
himself  a  party,  when  he  may  recover  against  all  who  are  liable 
on  the  paper  prior  to  himself,  though  he  cannot  recover  as  against 
those  who  become  parties  to  it  subsequently  to  himself,  unless 
there  is  some  special  agreement  to  authorize  it. 

ARTICLE  IL 
/ 

PARTIES   TO    A   BILL   OR   ITGTE. 

Section  1.  In  general.  A  bill  or  note  is  a  contract,  and  the 
assent  of  the  parties  is  as  requisite  in  making  such  a  contract  as 
in  making  any  other.  There  must  be  legal  capacity  to  assent  or 
the  contract  will  not  be  binding.  See  ante,  82.  The  presumption  is 
that  all  persons  are  capable  of  contracting,  unless  they  are 
declared  incapable  by  law.  The  disability  or  want  of  legal 
capacity  is  an  exception  to  the  general  rule,  and  it  must, be 
pleaded  and  established  by  evidence  to  be  available  as  a  defense 
to  an  action  on  a  bill  or  note. 

As  a  general  rule,  every  person  who  is  capable  of  making  a 
valid  contract  in  relation  to  other  matters  is  equally  capable  of 
making  a  valid  bill  or  note.  There  may  be  some  exceptions  to 
the  rule,  though  they  are  not  numerous.  See  title  Assent,  ante, 
82.  An  infant's  note  is  voidable.  See  Infancy.  Corporations 
may  make  notes  if  that  is  necessary  to  the  transaction  of  their 
business,  and  within  the  scope  of  their  charter.  See  Corpora- 
tions.    As  to  notes  made  by  partners,  see  Partnership. 

At  common  law  the  note  of  a  married  woman  is  absolutely 
void.  But  since  the  statute,  which  authorizes  her  to  transact 
Vol.  I.  —  08 


638  BILLS  AND  NOTES. 

business  on  her  own  account  in  the  same  manner  that  she  might 
do  if  she  were  a  single  female,  there  cannot  be  any  doubt  of  her 
ability  to  make  a  valid  note  or  bill,  if  it  is  in  good  faith  made 
and  given  in  the  course  of  the  business  which  the  statute  author- 
izes her  to  transact.  Laws  of  1860,  chap.  90,  and  as  amended. 
Laws  1862,  chap.  172.  See  Married  Women.  An  agent  may 
make  a  bill  or  note  for  his  principal ;  but  he  must  be  careful  to 
keep  within  the  limits  of  his  authority  or  he  will  render  himself 
personally  liable.    Ante,  236,  240. 

AKTICLE  III. 

FORMS  AND  REQUISITES  OF  BILLS  AND  NOTES,  ETC. 

Section  1.  In  generah  A  prominent  characteristic  of  bills  of 
exchange;  promissory  notes  and  of  checks  is,  that  they  import  an 
absolute  promise  or  order  to  pay  a  specified  sum  of  money  to 
some  designated  person.  And  to  effectuate  the  intention  of  the 
parties,  any  promise  or  order  which  possesses  these  requisites 
will  be  held  to  be  a  valid  instrument.  Wells  v.  Brigham,  6 
Gush.  6  ;  Coursin  v.  Tedlle'' s  Adm''rs,  31  Penn.  St.  506  ;  Arnold 
V.  Sprague,  34  Yt.  402 ;  Bates  v.  Butler,  46  Me.  387.  A  bill, 
though  not  payable  to  bearer  or  order,  is  still  a  bill  of  ex- 
change, lb. 

Every  valid  promissory  note  requires  a  competent  maker,  who 
can  make  a  valid  legal  promise  to  pay  the  money.  So,  every 
bill  of  exchange  must  be  accepted  by  a  person  who  is  legally 
capable  of  making  such  a  contract.  There  must  also  be  a  proper 
person  to  whom  a  note  is  made  payable  ;  and  there  must  not  be 
any  uncertainty  as  to  the  person  to  whom  it  is  payable.  If  no 
payee  is  named,  or  if  no  person  is  designated,  so  that  there  is  no 
person  specified  as  payee,  the  note  will  be  void.  A  note  read 
thus  :  "  I  promise  to  pay  to  the  secretary  for  the  time  being  of 
the  Indian,  etc..  Society,"  and  it  was  held  void  because  no  per- 
son was  designated  as  payee.  Storm  v.  Stirling,  3  Ell.  &  Bla. 
832;  S.  C,  Cowie  v.  Storm,  6  id.  333.  The  principle  of 
this  decision  is,  that  the  note  was  not  payable  to  the  person  who 
was  secretary  at  the  time  when  the  note  was  made,  but  to  some 
unknown  person  who  might  be  secretary  at  a  future  time,  when 
the  note  was  payable,  which  was  nine  months  after  date. 

A  bill  of  exchange  was  drawn  in  this  form  :  "  Six  months  after 
date  pay  to  the  order  of  the  treasurer  for  the  time  being  of  the 
Commercial  Travelers'  Benevolent  Institution,  the  sum  of  twenty 


BILLS  AND  NOTES.  639 

pounds  for  value  received."  This  bill  was  held  to  be  void,  and 
the  court  said  :  "  I  think  the  true  construction  of  the  instrument 
is.  that  the  acceptor  undertakes  to  pay  the  amount  to  the  order 
of  the  person  whoever  he  may  be,  who  at  the  time  of  the  maturity 
of  the  bill  shall  be  the  treasurer  of  the  institution.  I  take  it,  that 
in  order  to  constitute  a  valid  bill  of  exchange,  it  is  essential  that 
there  should  be  a  drawer,  a  drawee  and  a  payee ;  and  although 
the  payee  need  not  be  expressly  designated  by  name,  still  it  is 
essential  to  the  validity  of  the  bill,  that  -he  shall  be  a  person 
who  is  capable  of  being  ascertained  at  the  time  the  bill  is  accepted. 
He  cannot  be  a  person  who  is  not  ascertainable  at  that  time,  con- 
sequently, the  payee  not  being  an  ascertained  person  at  the  time 
of  the  acceptance,  the  instrument  here  sued  on  is  not  a  valid  bill 
of  exchange."  Yates  v.  Nash,  8  J.  Scott,  581,  586.  A  written 
promise  to  pay  "  to  the  estate  of  A,  deceased,'''  and  not  to  any  per- 
son by  name,  is  not  a  promissory  note.  Lyon  v.  Marshall,  11 
Barb.  241 ;  see,  also,  Tittle  v.  Thomas,  30  Miss.  125 ;  Benning- 
ton V.  Dinsmore,  2  Gill.  348. 

The  cases  just  cited  are  distinguishable  from  any  other  class  of 
cases  which  seem  to  be  quite  similar.  If  the  note  or  bill  is  pay- 
able to  some  person  who  is  designated  by  name,  it  will  be  valid, 
although  payable  also  to  some  other  person  as  his  successor  in 
office.  A  note  was  written  in  this  form  :  "Twelve  months  after 
date,  I  promise  to  pay  to  Joseph  M.  White,  Charles  A.  Davis 
and  Louis  McLane,  Trustees  of  the  Apalachicola  Land  Company, 
or  their  successors  in  office,  or  order,"  etc. ;  and  this  note  was 
held  valid.  Dams  v.  Garr,  6  N.  Y.  (2  Seld.)  124.  A  note  pay- 
able to  "  the  administrators  "  of  a  particular  estate  has  been  held 
negotiable.  Moody  v.  Threlkeld,  13  Ga.  5^ ;  Adams  v.  King, 
16  111.  169.  So,  if  a  note  payable  to  "the  steamboat  Juda  and 
owners,  or  order.' '    Moore  v.  Anderson,  8  Ind.  18. 

In  Dams  v.  Oarr,  there  were  payees  designated  by  name  to 
whom  the  note  might  be  paid.  And,  in  case  of  a  change  of  officers, 
the  note  would  be  in  legal  effect  payable  to  the  successors.  The 
contract  was  complete  and  legal  at  the  time  when  it  was  made,  and 
if  an}^  change  subsequently  occurred  as  to  the  persons  to  whom 
it  became  payable,  that  would  not  invalidate  the  note.  And  see 
The  King  v.  Box,  6  Taunt.  325.  But  a  note  which  is  payable  in 
the  alternative  is  not  negotiable  within  the  statute,  as,  for 
instance,  if  it  is  made  payable  to  A,  or  to  B  and  C.  Blancken- 
hagen  v.  Blundell,  2  Barn.  &  Aid.  417;  Walrad  v.  Petrie,  4 
Wend.  575  ;  Musselman  v.  Oalies,  19  111.  81 ;  Osgood  \.  Pearson, 


640  BILLS  AND  NOTES. 

4  Gfray,  455 ;  CJiilds  v.  Damdson,  38  111.  437.  Such  a  note  can- 
not be  declared  on  as  a  promissory  note  within  the  statute.  If, 
however,  it  purports  on  its  face  to  be  for  value  received,  the 
setting  forth  of  the  note  according  to  its  terms  is  a  sufficient 
statement  of  the  consideration  to  enable  the  plaintiff  to  recover 
as  on  a  contract.  Walrad  v.  Petrie,  4  Wend.  675 ;  Jerome  v. 
Whitney,  7  Johns.  321 ;  Taplin  v.  Packard,  8  Barb.  220.  So, 
an  instrument  thus:  "On  demand,  we  jointly  and  severally 
promise  to  pay  to  W.  S.  and  M.,  or  to  their  order,  or  the  major 
part  of  them,  one  thousand  pounds,"  is  a  valid  promissory  note, 
upon  which  the  three  payees  may  maintain  an  action.  Watson 
V.  Emms,  1  H.  &  Colt.  662. 

The  contingency  as  to  the  payee  must  be  apparent  on  the  face 
of  the  note,  or  it  will  not  prevent  it  from  being  negotiable. 
Richards  v.  Richards,  2  Barn.  &  Aid.  447 ;  Sweeting  v.  Prowler, 
1  Stark.  106. 

The  makers  of  a  promissory  note,  which,  in  terms,  is  payable 
to  their  own  order,  and  is  by  them  indorsed,  thereby  contrg,ct 
with  whomsoever  may  be  the  legal  indorsee  when  it  becomes 
payable,  to  pay  it  to  him.  Smith  v.  Gardner,  4  Bosw.  64. 
Where  a  note  is  made  by  several  persons  payable  to  one  of  their 
own  number,  though  payment  cannot  be  enforced  at  law,  as 
between  the  original  parties,  yet  if  it  be  indorsed  to  a  third  per- 
son, he  may  maintain  an  action  upon  it."  Pitcher  v.  Barrows, 
17  Pick.  361 ;  Heywood  v.  Wright,  14  N.  H.  73 ;  Ramho  v.  Metz, 
6  Strobh.  108  ;  see,  also,  Muldrow  v.  Caldwell,  7  Mo.  563  ;  Mur- 
doch V.  Caruthers,  21  Ala.  785. 

In  this  State  it  is  declared  by  statute  that  notfes  made  payable 
to  the  order  of  the  maker  thereof,  or  to  the  order  of  a  fictitious  per- 
son, shall,  if  negotiated  by  the  maker,  have  the  same  effect  and  be  of 
the  same  validity  as  against  the  maker  and  all  persons  having 
knowlege  of  the  facts  as  if  payable  to  bearer.  1  R.  S.  721,  §  5,  Edm. 
ed.  This  statute  was  made  for  the  purpose  of  obvilating  a  difficulty 
in  the  way  of  the  holder,  in  making  title  and  suing  on  a  note 
which  had  not  been  indorsed  by  the  person  to  whose  order  it  was 
made  payable.  It  applies  to  cases  where  the  maker,  who  is  also 
payee,  negotiates  the  note  without  indorsement.  Plets  v.  John- 
son, 3  Hill,  116,  Bronson,  J.  A  promissory  note  was,  by  its 
terms,  made  payable  to  the  makers'  own  order,  but  they  omitted 
to  indorse  it.  It  was  delivered  by  the  makers  as  a  premium  note 
upon  an  open  policy  to  a  marine  insurance  company.  That 
company  was  authorized  "to  negotiate  premium  notes  for  the 


BILLS  AND  NOTES.  541 

purpose  of  paying  claims,  or  otherwise,  in  the  regular  transaction 
of  its  business."  They  delivered  the  note  in  suit,  with  others,  to 
the  plaintiff,  and  had  them  discounted  and  received  the  proceeds. 
A  small  amount  of  risks  compared  with  the  amount  of  the  note 
had  been  taken  and  premiums  earned.  The  note  was  to  cover 
premiums  to  be  earned.  There  was  no  evidence  as  to  the  appli- 
cation of  the  proceeds  of  the  note  by  the  insurance  company. 
It  was  held  that  the  note  was  so  negotiated  by  the  makers,  by 
its  delivery  to  the  company,  as  to  make  it  the  same  in  legal  effect 
as  if  payable  to  bearer  within  the  statute,  that  the  plaintiffs  were 
bona  fide  holders  of  the  note,  and  that  they  were  entitled  to 
recover  the  whole  amount  of  the  note,  whatever  might  be  the 
equities  or  rights  between  the  makers  and  the"  insurance  com- 
pany. Central  Bank  of  Brooklyn  v.  Lang,  1  Bosw.  202,  and  see 
Brower  v.  Hill,  1  Sandf.  629,  648.  A  note  payable  to  a  fictitious 
person  or  firm  is  recoverable  as  payable  to  bearer  under  the 
statute,  on  proof  that  it  was  negotiated  by  the  makers.  A  note 
v^hich  is  made  payable  to  a  fictitious  person  or  firm,  and  is  ne- 
gotiated by  the  makers  is  "valid,  and  the  holder  may  recover  upon 
it  under  the  statute,  in  the  same  manner  as  though  the  note  had 
been  made  payable  to  the  bearer.  Stettens  v.  Strong,  2  Sandf. 
138  ;  Plets  v.  Johnson,  3  Hill,  112. 

Where  a  note  is  made  payable  to  the  order  of  the  maker,  and 
he  transfers  it  by  indorsement,  the  note  is  valid  and  negotiable, 
and  the  holder  could  have  recovered  upon  it  even  before  this 
statute.  Plets  v.  Johnson,  3  Hill,  112  ;  Smith  v.  Lusher,  5  Cow. 
688.  See  Gale  v.  3Iiller,  54  N.  Y.  (9  Sick.)  536,  538;  Miller  v. 
Weeks,  22  Penn.  St.  89 ;  Muldroio  v.  Caldwell,  7  Mo.  563. 

Where  a  bill  or  note  is  payable  otherwise  than  to  the  bearer, 
it  must  contain  the  name  of  the  payee.  A  promise  to  pay  a  given 
sum  on  demand  for  value  received,  without  saying  to  whom,  has 
been  held  to  be  mere  waste  paper.  Douglass  v.  Wilkeson,  6 
Wend.  637,  644 ;  Gibson  v.  Minet,  1  H.  Bla.  609,  610,  Eyee,  Ch. 
B.  But  a  note  which  is  made  payable  to  the  person  who  should 
thereafter  indorse  it  is  negotiable.  United  States  v.  White,  2 
Hill,  59. 

The  court  said,  page  61 :  "  The  maker  of  a  note  may  bind  him- 
self to  the  bearer  generally  ;  and  a  promise  to  pay  such  bearer 
as  shall  come  to  the  possession  of  the  note  in  anj  given  mode  is 
but  a  more  limited  exercise  of  the  same  power.  It  is  like  making 
a  note  payable  in  blank,  which  may  be  filled  up  by  a  bona  fide 
holder  with  his  own  name  ;  indeed  it  is  but  a  more  enlarged  form 


542  BILLS  AND  NOTES. 

of  the  ordinary  promise  to  the  payee  or  order,  or  the  order  of  the 
payee.  If  it  could  have  effect  in  no  other  way,  we  should  hold 
it  payable  to  bearer  generally,  like  a  bill  payable  to  a  tictitious 
payee  or  order."  A  bank  check  which  is  made  payable  "  to  the 
order  of  bills  payable,"  or  "to  the  order  of  1658,"  cannot  be 
passed  by  an  indorsement,  and  it  is,  therefore,  in  judgment  of 
law,  payable  to  bearer.  It  stands  upon  the  same  ground  as  a 
check  payable  to  the  order  of  a  fictitious  person .  Willets  v. 
PJicenix  Baiik^  2  Duer,  121  ;  Oibson  v.  Mlnet,  1  H.  Bla.  569  ; 
and  see  Leonard  v.  Mason,  1  Wend.  522  ;  ODonnell  v.  SmitJi, 
2  E.  D.  Smith,  124.  To  entitle  the  holder  of  a  note,  claiming 
thereon  without  the  indorsement  of  the  payee,  to  recover,  he 
must  prove  affirmatively  that  the  payee  is  a  fictitious  person. 
Maniort  v.  Boherts,  4  E.  D.  Smith,  84. 

A  bill  or  note  which  is  made  payable  to  the  order  of may 

be  filled  up  by  any  bearer,  with  his  own  name,  if  he  can  show 
that  he  came  regularly  by  it.  Hardy  v.  Morton,  QQ  Barb.  527, 
533 ;  Cratcliley  v.  Mann,  6  Taunt.  529 ;  CrucTiley  v.  Clarence, 
2  Maule  &  Selw.  90 ;  Atwood  v.  Griffin,  2  Carr.  &  Payne,  368. 
A  United  States  treasury  note  is  valid  although  issued  with  the 
name  of  the  payee  left  in  blank.  Dinsmore  v.  Duncan,  57  N. 
Y.  (12  Sick.)  573.  When  a  bill  or  note  is  issued  with  a  blank  for 
the  name  of  the  payee,  a  hona  fide  holder  has  authority  to  insert 
his  name  in  such  blank.  lb.  If  a  promissory  note  is  made  pay- 
able to  A  B,  generally,  it  is  prima  facie  evidence  of  a  promise 
to  A  B,  the  father,  and  not  to  A  B,  the  son,  if  the  names  are 
the  same  ;  but  if  A  B  the  younger  is  in  possession  of  the  note, 
he  may  recover  upon  it.  Sweeting  v.  Fowler,  1  Stark.  106.  The 
words  "or  order,"  "or  bearer,"  and  "bearer,"  in  notes,  bills 
and  checks,  are  words  of  negotiability,  and  the  use  of  either 
of  them  makes  the  paper  negotiable,  although  impersonal 
words  be  used  in  place  of  naming  a  payee,  and  if  such  words  be 
used  it  is  negotiable  by  delivery  without  indorsement.  Me- 
chanics^ Bank  v.  Straiton,  3  Abb.  Ct.  App.  269  ;  5  Abb.  (N.  S.) 
11  ;  36  How.  190  ;  3  Keyes,  365  ;  1  Trans.  App.  201.  So  of  a 
note  payable  to  the  "holder."  Putnam  v.  Crymes,  1  McMul- 
lan's  Law.  9. 

If  a  promissory  note,  not  payable  to  order  or  bearer,  is  indorsed 
by  the  payee  and  transferred  by  him,  he  may  be  sued  as  an 
indorser  of  a  promissory  note.    Bates  v.  Butler,  46  Me.  387. 

A  mistake  in  the  name  of  the  payee,  or  a  misdescription  of  it, 
will  not  invalidate  a  bill  or  note,  if  the  evidence  leaves  no  doubt 


BILLS  AND  NOTES.  543 

as  to  the  intended  payee.     Tlie  King  v.  Box^  6  Taunt.  325  ;  8te- 
vens  V.  Strong,  2  Sandf.  138. 

An  ordinary  due  bill  in  the  following  form :  "  Due  A  B  one 
hundred  dollars  payable  on  demand,"  is  a  valid  promissory  note 
within  the  statute,  if  signed  by  the  maker.  Kimball  v.  Hun- 
tington, 10  Wend.  675  ;  Luqueer  v.  Prosser,  1  Hill,  256.  Or  it 
is  valid  if  in  this  form  :  "  Due  A  B  or  bearer,  one  day  from 
date,  one  hundred  dollars,  for  value  received."  Russell  v.  Whip- 
ple, 2  Cow.  536.  So  of  a  due  bill  thus :  "  Due  A  B,  or  bearer, 
one  hundred  dollars,  for  value  received,  with  interest,  at  L.'s 
office  in  E,.,"  and  not  specifying  any  time  of  payment.  Sackelt 
V.  Spencer,  29  Barb.  180.  No  time  of  payment  being  specified, 
the  law  declares  it*to  be  payable  immediately.     lb. 

A  sealed  instrument  in  the  form  of  a  negotiable  note  is  not 
negotiable.  Helper  v.  Alden,  3  Minn.  332.  But  the  affixing  of 
a  seal  to  a  bill  of  exchange  does  not  deprive  it  of  its  commercial 
character.  Bain  v.  Wilson,  14  Ohio  St.  14.  A  United  States 
treasury  note  is  not  rendered  unnegotiable  because  it  is  under 
the  treasury  seal.    Dinsmore  v.  Duncan,  57  N.  Y.  (12  Sick.)  573. 

A  written  instrument,  in  the  usual  form  of  a  bond,  but  with- 
out a  seal,  is  a  promissory  note  within  the  statute.  Woodward 
V.  Genet,  2  Hilt.  526 ;  Lynam  v.  Calif  er,  64  No.  Car.  572.  So 
an  instrument  in  these  words :  "  Six  months  from  date  I  guar- 
anty to  pay,"  etc.,  is  a  valid  note.  Bruce  v.  Westcott,  3  Barb. 
374.  So  of  an  agreement  to  be  accountable  for  a  specified  sum. 
Morris  v.  Lee,  1  Strange,  629;  S.  C,  2  Ld.  Raym.  1396;  8  Mod. 
362. 

An  instrument  in  the  form  of  a  bill  of  exchange,  drawn  upon 
a  joint-stock  bank  by  the  manager  of  one  of  its  branch  banks 
by  order  of  the  directors,  may  be  declared  upon  as  a  promissory 
note.  Miller  v.  Thompson,  3  Man.  &  Grang.  576.  So  an  order 
drawn  by  the  president  of  a  railroad  corporation  upon  its 
treasurer,  directing  the  latter  to  pay  A  B,  or  order,  a  specified 
sum,  stated  as  being  the  amount  due  A  B  for  work  done  by  him 
as  contractor,  in  building  a  section  of  the  railroad  of  the  corpo- 
ration, is  in  eifect  a  promissory  note,  and  may  be  declared  on  as 
such.  Fairchild  v.  Ogdensburgh,  etc..  Railroad,  15  N.  Y.  (1 
Smith)  337. 

A  written  warrant  of  a  municipal  corporation  for  the  payment 
of  a  sum  certain,  at  a  fixed  time,  to  A  or  order,  stating  that  it  is 
payable  "  out  of  any  funds  belonging  to  the  (Aij,  not  before  spe- 
cially appropriated,"  and  "chargeable  to  the  general  city  fund," 


644  BILLS  AND  NOTES. 

is  a  negotiable  promissory  note.  Bull  v.  Sims,  23  N.  Y.  (9 
Smitli)  670. 

An  instrument  wliich  promises  to  pay  a  specified  sum  of  money 
to  A  B,  or  order,  or  bearer,  is  a  valid  promissory  note,  although 
it  contains  a  clause  which  authorizes  the  payee  or  holder  to 
accept  or  claim  something  besides  money  in  payment.  And, 
therefore,  an  instrument  by  which  a  railroad  corporation  prom- 
ises to  pay,  at  a  specified  place,  to  A  B,  or  order,  a  given  sum, 
with  interest,  with  a  privilege  of  returning  the  note  within  a 
given  time,  and  receiving  stock  in  exchange  for  it,  is  a  negotiable 
promissory  note.  Hodges  v.  Shuler,  22  N.  Y.  (8  Smith)  114;  S. 
C,  24  Barb.  68. 

Bonds  issued  by  a  railroad  company,  whether  under  its  cor- 
porate seal  or  not,  payable  to  A  B,  or  the*  holder  thereof,  are 
negotiable,  and  will  pass  by  delivery.  Conn.  Mutual  Life  Ins. 
Co.  V.  Cleveland,  etc.,  R.  R.  Co.,  41  Barb.  9;  36  How.  225; 
Brainard  v.  New  Yorlc  and  Harlem  R.  R.  Co. ,  10  Bosw.  332 ; 
Banfield  v.  Rumsey,  2  Hun,  112 ;  4  S.  C.  (T.  &  C.)  322. 

So  of  an  instrument  by  which  the  maker  promises  to  pay  to 
A  B,  or  order,  for  value  received,  a  specified  sum,  at  the  maker's 
store,  four  months  after  date,  or  in  goods  on  demand.  Hosstatter 
V.  Wilson,  36  Barb.  307.  In  these  cases  the  notes  promise 
unconditionally  to  pay  a  specified  sum  of  money,  and  the  maker 
has  no  option  about  it,  and  therefore  the  promise  is  not  in  the 
alternative  so  far  as  the  maker  is  concerned.  The  fact  that  the 
payee  or  holder  has  an  option  to  accept  payment  in  something 
else  than  money  does  not  change  the  character  of  the  promise  to 
pay  money. 

Every  bill  or  note  ought  to  be  signed  by  the  drawer  or  maker. 
The  statute  has  provided  some  general  rules,  which  will  be  given: 
"All  notes  in  writing,  made  and  signed  by  any  person,  whereby 
he  shall  promise  to  pay  to  any  other  person  or  his  order,  or  to 
the  order  of  any  other  person,  or  unto  the  bearer,  any  sum  of 
money  therein  mentioned,  shall  be  due  and  payable  as  therein 
expressed,  and  shall  have  the  same  effect  and  be  negotiable  in 
like  manner  as  inland  bills  of  exchange,  according  to  the  custom 
of  merchants."  1  R.  S.  721,  §  1,  Edm.  ed.  "Every  such  note, 
signed  by  the  agent  of  any  person,  und^r  a  general  or  special 
authority,  shall  bind  such  person,  and  shall  have  the  same  effect, 
and  be  negotiable  as  aboye  prescribed."  Id.,  §  2.  "The  word 
'  person '  in  the  two  last  preceding  sections  shall  be  construed  to 
extend  to  every  corporation  capable  by  law  of  making  con- 


BILLS  AND  NOTES.  545 

tracts."  Id.,  §  3.  "The  payees  and  indorsees  of  every  such 
note  payable  to  them  or  their  order,  and  the  holders  of  every 
such  note  payable  to  bearer,  may  maintain  actions  for  the  sums 
of  money  therein  mentioned  against  the  makers  and  indorsers 
of  the  same  respectively,  in  like  manner  as  in  cases  of  inland 
bills  of  exchange,  and  not  otherwise."  Id.,  §  4.  The  manner 
of  signing  will  be  discussed  hereafter.  Where  a  note  is  made 
by  an  agent,  or  by  one  of  several  partners,  the  pleadings  and 
evidence  ought  to  show  enough  to  establish  that  there  was  suffi- 
cient authority  to  make  it,  so  as  to  bind  the  principal  or  the 
other  partners.  Mitchell  v.  Ostrom,  2  Hill,  520.  The  promise 
of  the  maker  ought  to  be  unconditional  as  to  all  the  principals 
in  the  note.  A  note  was  made  in  this  form  :  "I,  John  Corner, 
promise  to  pay  to  Absalom  Ferris  the  sum  of  fifty  pounds,  with 
lawful  interest  for  the  same,  or  his  order,  at  six  months'  notice. 
Dated  this  24th  June,  1808.  John  Corner,  or  else  Henry  Bond." 
It  was  held  that  no  action  would  lie  against  Henry  Bond  on  this 
note.  The  court  said:  "This  is  not  a  promissory  note  by  this 
defendant  within  the  statute  of  Anne.  It  operates  difl'erently  as 
to  the  two  parties.  It  is  an  absolute  undertaking  on  the  part  of 
Corner  to  pay,  and  it  is  conditional  only  on  the  part  of  the 
defendant,  for  he  undertakes  to  pay  only  in  the  event  of  Corner's 
not  paying."     Ferris  v.  Bond,  4  Barn.  &  Aid.  679,  681. 

A  note  which  contains  a  promise  to  pay  a  sum  certain,  if  the 
maker's  brother  does  not,  within  six  weeks,  is  not  good  as  a 
promissory  note.  Appleby  v.  Biddulph,  8  Mod.  363.  The  prin- 
ciple of  these  decisions  is,  that  the  promise  of  the  makers  must 
be  an  absolute,  not  a  conditional  one.  But  there  are  other  cases 
in  which  a  party  signs  his  name  below  the  principal,  and  then 
adds  the  word  " surety"  to  his  name.  Such  a  note  is  held  to  be 
valid,  and  an  absolute  promise  to  pay  the  amount  to  the  pa3^ee 
or  holder,  both  as  to  the  principal  and  as  to  the  person  who  thus 
writes  "surety"  to  his  name.  Wright  v.  Oarlinghouse,  26  N. 
Y.  (12  Smith)  539 ;  Butler  v.  Bawson,  1  Denio,  105 ;  Black  v. 
Cafe,  7  N.  Y.  (3  Seld.)  281 ;  Griffith  v.  Reed,  21  Wend.  502.  A 
joint  maker  of  a  note  who  adds  to  his  signature  the  word 
"surety,"  does  not  limit  or  change  the  nature  of  his  liability  to 
the  payee  or  holder.  InTcster  v.  First  National  Bank,  30  Mich. 
143.  A  partnership  note  may  be  signed  in  the  name  of  the  firm. 
But  whef:e  several  persons,  who  are  not  partners,  make  a  note, 
it  ought  to  be  signed  by  each  of  the  individual  makers  in  his 
own  name. 

Vol.  L  — 69 


646  BILLS  AND  NOTES. 

A  bill  of  exchange  or  a  promissory  note,  to  be  negotiable 
under  the  statute,  must  be  payable  in  money  alone.  If  made 
payable  in  any  kind  of  property,  it  will  not  be  a  negotiable 
instrument  under  the  statute,  although  it  may  be  a  valid  con- 
tract, which  may  be  enforced  by  an  action.  Jerome  v.  Whitney^ 
7  Johns.  321.  If  the  bill  or  note  contains  a  promise  to  pay  a 
given  number  of  dollars  and  cents,  it  is  clearly  payable  in  money, 
because  dollars  and  cents  are  money.  But  the  cases  which  have 
been  decided  in  several  of  the  States,  and  in  England,  are  not 
in  entire  harmony  with  the  decisions  made  in  this  State. 

A  bill  or  note  which  is  made  in  this  State,  and  payable  here, 
will  not  be  negotiable  if,  on  its  face,  it  is  payable  in  bank  bills 
which  are  issued  by  banks  of  another  State.  Lieber  v.  Ooodrich, 
5  Cow.  186.  So,  a  note  made,  negotiated  and  payable  here  in 
Canada  money,  is  not  a  negotiable  note  within  the  statute. 
Thompson  v.  Sloan,  23  Wend.  71,  74.  See  Collins  v.  Lincoln, 
11  Vt.  268 ;  KirkpatricTc  v.  McCullougfi,  3  Humph.  171 ;  Fas- 
well  V.  Kennett,  7  Miss.  595;  HaioJcins  v.  WalMns,  5  Pike,  481. 
A  note  made  in  Michigan  payable  in  Canada,  in  "Canada  cur- 
rency," is  payable  in  money  and  negotiable.  Black  v.  Ward, 
27  Mich.  191 ;  15  Am.  Rep.  162.  So,  it  has  been  held  that  a 
note  which  is  payable  in  York  State  bills  or  specie  is  negotiable. 
Berry  v.  Bohinson,  9  Johns.  120 ;  Clirysler  v.  Benois,  43  N.  Y. 
(4  Hand)  209 ;  Cooke  v.  Dams,  53  N.  Y.  (8  Sick.)  318.  And  so  it 
has  been  held  of  a  note  payable  "  in  bank  notes  current  in  the 
city  of  New  York."  JadaJi  v.  Harris,  19  Johns.  144 ;  Lacy  v. 
Holbrook,  4  Ala.  88 ;  and  see  Miller  v.  Bace,  1  Burr.  457.  A 
check  drawn  in  this  State  upon  a  bank  in  Mississippi,  payable 
in  current  hank  notes,  is  not  negotiable.  Little  v.  Plicenix  Bank, 
7  Hill,  359  ;  S.  C,  2  id.  425.  An  order  drawn  by  A  in  favor  of 
B,  upon  another,  for  A's  goods,  or  the  proceeds  of  Ms  goods,  in 
the  hands  of  the  drawer,  is  not  a  bill  of  exchange,  nor  equiva- 
lent to  a  bill  of  exchange.  Atkinson  v.  Manks,  1  Cow.  692.  So, 
an  order  drawn  by  a  landlord  on  his  tenant,  to  pay  to  a  person 
specified,  the  rents  which  had  accrued  during  a  certain  time,  is 
not  a  negotiable  bill  requiring  a  written  acceptance,  because  it  is 
not  for  the  payment  of  money  only,  since  it  might  be  payable 
in  something  else  than  money,  and  besides  it  is  drawn  upon  a 
particular  fund.     Morton  v.  Naylor,  1  Hill,  583. 

Bills  and  notes  may  be  payable  in  money  alone,  and  may  still 
contain  clauses  which  will  render  them  unnegotiable  under  the 
statute.    A  note  which  promises  to  pay  money,  and  also  to  do 


BILLS  AND  NOTES.  547 

some  other  act,  is  not  negotiable.  A  note  promised  to  pay 
twenty-five  dollars  to  the  payee  of  it ;  and  it  contained  this  addi 
tional  clause,  "  I  am  to  insure  one  span  of  colts  from  my  horse  to 
Mr.  Cheesebrough's  sorrel  mares  this  season,  for  ten  dollars  and 
fifty  cents,"  it  was  held,  that  the  note  was  not  negotiable,  and 
that  any  person,  other  than  the  payee,  who  sought  to  recover 
upon  it  must  prove  an  assignmerit  of  the  note  to  him.  Austin 
V.  Biirns^  16  Barb.  643.  So,  an  instrument  which  directs  B  to 
pay  to  C,  or  bearer,  a  specified  sum,  and  take  up  Jil  s  note  for 
that  amount^  is  not  a  bill  of  exchange  although  accepted  in 
writing  by  B.  CooTc  v.  Satterlee,  6  Cow.  108.  And  a  note,  in 
which  the  maker  promises  to  pay  a  certain  sum  of  money,  at  a 
particular  day,  and  also  to  deliver  up  horses  and  a  wharf,  is  not 
negotiable.  Martin  v.  Chauntry,  2  Strange,  1271.  So,  a  note 
which  agrees  to  pay  a  certain  sum,  with  interest,  and  also  to  pay 
a  debt  of  uncertain  amount  which  the  payee  owed,  as  part  pay- 
ment of  interest,  is  not  negotiable.  Bolton  v.  Dugdale^  4  Barn. 
&  Ad.  619.  A  promise  was  in  writing  as  follows  :  "I  agree  to 
pay  D  six  hundred  and  ninety-five  pounds  at  four  installments, 
viz.,  the  first  on,"  etc.,  "being  two  hundred  pounds,"  and  so 
on,  specifying  three  others,  the  four  amounting  to  six  hundred 
pounds ;  "  the  remaining  ninety-five  pounds  to  go  as  a  set-off  for 
an  order  of  R.  to  T.,  and  the  remainder  of  his  debt  owing  from 
D  to  him;"  it  was  held  that  this  was  not  a  promissory  note,  for 
such  a  note  must  be  entire,  and  this  instrument  contained  a 
promise  to  pay,  joined  with  an  agreement  to  do  something  else. 
Dames  v.  Wilkinson.  10  Ad.  &  Ellis,  98. 

A  note  may  be  made  payable  in  installments  by  the  terms  of 
the  note  itself  at  a  specified  time,  or  it  may  be  made  payable  b^' 
installments  payable  in  such  sums  and  at  such  times  as  they 
may  be  called  for,  as  in  the  case  of  notes  given  for  plank  road 
stock  or  similar  instances.  Dutchess  Cotton  Manuf.  v.  Davis. 
14  Johns.  238.  Stock  notes  which  are  given  for  the  formation  of 
insurance  companies,  and  premium  notes  given  when  an  insur- 
ance is  made,  are  familiar  instances  of  notes  payable  in  such 
installments.  Notes  which  are  payable  either  in  money,  or  in 
goods,  at  the  option  of  the  maker,  are  not  negotiable,  because  in 
such  a  case  the  note  is  not  payable  in  money  unless  the  maker 
so  elect.  It  is  proper  to  remark  here  that  the  mere  fact  that  a 
bill  or  note  is  not  negotiable  under  the  statute,  does  not  deter- 
mine that  the  note  is  void. 

In  all  cases  in  which  there  is  a  valid  consideration  for  the  note 


548  BILLS  AND  NOTES. 

or  bill,  and  it  is  in  all  other  respects  legal,  such  note  or  bill  will 
be  valid  as  a  contract,  and  if  properly  assigned,  may,  in  this  State, 
be  enforced  in  the  name  of  the  person  who  owns  it.  Ante^  535. 
The  principal  importance  which  is  to  be  attached  to  the  question 
of  negotiability,  arises  from  the  rule  of  law  which  subjects  all 
unnegotiable  bills  and  notes  to  any  equities  which  may  exist 
between  prior  parties,  even  when  they  are  transferred  before  due 
to  a  bona  fide  purchaser  for  value.  In  some  cases  the  rules  of 
pleading  require  a  statement  of  facts  in  relation  to  unnegotiable 
papers  which  is  not  required  when  delivering  upon  negotiable 
instruments.  So,  too,  the  evidence  may  differ  in  such  respects 
as  the  pleadings  may  require. 

The  essential  qualities  of  a  bill  or  note  are,  that  it  be  payable 
at  all  events,  not  dependent  on  any  contingency,  nor  payable 
out  of  a  particular  fund,  and  that  it  be  for  the  payment  of  money 
only,  and  not  for  the  performance  of  some  other  act  or  in  the 
alternative.  Cook  v.  Satterlee,  6  Cow.  108;  Oillilan  v.  Myers,  31 
111.  525;  Hinnemann  v.  RosenhacJc,  39  N.  Y.  (12  Tiff.)  98;  6 
Trans.  App.  257.  The  amount  for  which  a  bill  or  note  is  drawn 
must  be  made  payable  absolutely  and  at  all  events,  for  certainty 
is  a  great  object  in  mercantile  instruments.  B.unker  v.  Athearn, 
35  Me.  364;  Hays  v.  Gioin,  19  Ind.  19.  A  promissory  note,  payable 
to  order,  but  containing  a  condition  that  it  shall  be  given  up  to 
the  makers  as  soon  as  the  amount  of  it  is  received  by  the  payee, 
is  not  negotiable.  Hubbard  v.  Mosely,  11  G-ray,  170.  So  a  note 
payable  "  when  any  dividends  shall  be  declared"  by  a  specific 
corporation,  is  payable  on  a  contingency,  and  not  a  negotiable 
promissory  note.  Brooks  v.  Har greaves,  21  Mich.  254.  A  written 
promise  to  pay  money,  provided  the  payee  shall  do  a  certain 
thing,  is  not  negotiable  paper.  James  v.  Hagar,  1  Daly,  517.  A 
promise  to  pay  to  the  maker's  own  order  "  subject  to  the  policy," 
and  indorsed  specially  to  the  order  of  an  insurance  company,  is 
not  negotiable.  American  Exchange  Bank  v.  Blanchard,  7  Allen, 
333.  It  would  perplex  the  commercial  transactions  of  mankind  if 
negotiable  securities  were  issued  out  into  the  world  incumbered 
with  conditions  and  contingencies,  and  if  the  persons  to  whom 
they  were  offered  in  negotiation  were  obliged  to  inquire  when 
those  uncertain  events  would  probably  be  reduced  to  a  certainty, 
and,  accordingly,  unless  they  carry  their  own  validity  on  the 
face  of  them,  and  conform  to  what  is  recognized  by  mercantile 
custom,  they  will  not  be  negotiable.  Carlos  v.  Fancourt^  5 
Term,  482,  485,  486. 


BILLS  AND  NOTES.  649 

An  order  for  a  specified  sum,  "payable  ninety  days  after 
Bight,  or  when  realized,''^  is  not  a  negotiable  bill  of  exchange,  as 
the  latter  alternative  makes  the  sum  payable  on  a  contingency. 
Alexander  v.  Thomas,  16  Ad.  &  Ell.  (N.  S.)  333.  A  note  payable 
to  an  insurance  company  or  order,  for  a  sum  certain,  "and  such 
additional  premiums  as  may  become  due  on  a  policy,  named, 
and  at  a  time  therein  specified,  is  not  negotiable.  Marret  v. 
Equitable  Ins.  Co.,  54  Me.  537. 

An  agreement  in  writing  in  the  form  of  a  promissory  note, 
payable  on  demand,  with  interest,  contained  these  additional 
words  :  "  but  no  demand  is  to  be  made  as  long  as  the  interest  is 
paid,"  and  it  was  held  that  it  was  not  a  negotiable  promissory 
note.  Seacord  v.  Burling,  5  Denio,  444.  No  matter  what  the 
event  may  be,  on  the  happening  of  wliich  payment  is  to  be  made, 
if  it  be  uncertain,  it  destroys  the  character  and  negotiability  of 
the  bill  or  note. 

If  an  order  is  drawn  which  is  payable  out  of  the  proceeds  of 
certain  carriages,  whenever  they  are  sold  {DeForest  v.  Frary,  6 
Cow.  151);  or  if  the  promise  is  to  pay,  provided  a  certain  person, 
at  his  death,  leaves  the  maker  sufficient  to  pay  with,  or  if  he 
shall  be  otherwise  able  to  pay  the  money  {Roberts  v.  PeaJce, 

1  Burr.  323);  or  if  the  promise  is  to  pay  within  a  certain  number 
of  days  after  the  defendant  should  marry  {Beardsley  v.  Baldwin, 

2  Strange,  1151) ;  all  such  instruments  will  be  unnegotiable.  It 
is  imtnaterial  in  what  language  the  contingency  is  expressed,  so 
long  as  the  promise  of  payment  is  conditioned  upon  the  happen- 
ing of  an  uncertain  event.  Such  an  instrument  cannot  be  made 
payable  on  a  contingency  which  may  never  happen  ;  it  must  be 
payable  at  a  time  certain,  or  at  sight,  or  at  so  many  days  after 
sight,  or,  at  all  events,  on  the  happening  of  an  event  which  must 
at  some  period  take  place.  An  instrument  by  which  an  indi- 
vidual promises  to  pay  another  a  certain  sum  ninety  days  after 
a  specified  partnership  is  dissolved,  and  the  settlement  of  the 
firm  books,  is  not  a  negotiable  note,  because  it  is  payable  after 
the  liappening  of  two  events,  one  of  which,  the  settlement  of  the 
books,  may  never  happen.  Sackett  v.  Palmer,  25  Barb.  179. 
So,  where  money  was  to  be  advanced,  by  installments,  each  of 
which  was  to  be  paid  as  fast  as  certain  portions  of  work  were 
completed,  and  the  person  to  whom  the  money  was  payable 
drew  an  order  upon  the  person  who  was  to  pay,  and  required  the 
order  to  be  paid  out  of  the  money  which  was  paj^able  on  the 
second  installment,  though  the  work  had  not  been  completed  so 


ooO  BILLS  AND  NOTES. 

as  to  render  that  installment  due,  it  was  held  that,  although  this 
order  was  accepted,  in  general  terms,  by  the  drawee,  it  was  not 
a  negotiable  bill  of  exchange;  and  it  was  also  held,  that  no 
action  would  lie  on  the  instrument  if  the  work  was  never  com- 
pleted, so  as  to  render  the  second  installment  due.  Yan  Wagner 
V.  Terrett,  27  Barb.  181. 

But  where  the  payment  is  made  to  depend  upon  an  event 
which  is  certain  to  occur,  though  it  is  uncertain  at  what  particu- 
lar time  it  will  happen,  the  bill  or  note  is  valid  and  negotiable. 
A  note  which  is  made  payable  in  a  certain  number  of  days  after 
Ihe  death  of  the  maker's  father  is  negotiable,  since  that  event  is 
certain  to  occur,  though  the  precise  time  when  it  will  take  place 
is  uncertain.  Coleman  v.  CooTce,  Willes,  393  ;  Cooke  v.  Colehan, 
2  Strange,  1217.  A  writing  thus :  "  One  day  after  date,  I 
promise  to  pay,  or  at  my  death,  A  or  bearer,"  may  be  sued  on 
as  a  promissory  note.  Conn  v.  Thornton,  46  Ala.  587.  A  note 
payable  thirty  days  after  peace  between  the  Confederate  States 
and  the  United  States  does  not  depend  upon  a  condition,  and  is 
valid.    Master  v.  Edwards,  20  La.  Ann.  236. 

And  so,  a  note  payable  to  an  infant  when  he  shall  come  of 
age,  as  on  the  first  day  of  December,  1876,  is  a  valid  negotiable 
note,  for  it  is  payable  on  the  day  specified,  although  the  infant 
should  die  before  the  time  arrives.  Goss  v.  Nelson,  1  Burr.  226. 
It  is  of  no  consequence  how  long  the  time  of  payment  is  post- 
poned, provided  the  time  fixed  is  certain  to  arrive,  or  the  event 
specified  is  certain  to  happen.  The  words  used  in  a  bill  of 
exchange  ought  to  imply  an  obligation  to  pay  the  amount 
named,  for  an  instrument  drawn  in  this  form  :  "Please  to  let  the 
bearer  have  seven  pounds,  and  place  it  to  my  account,  and  you 
will  oblige  me,"  not  purporting  to  be  a  demand  made  by  a  party 
having  a  right  to  call  on  the  other  to  pa}^  is  not  a  good  bill  of 
exchange.  Little  v.  Slackford,  1  Mood.  &  Malk.  171.  But  a 
draft  in  these  terms:  '"  Mr.  Nelson  will  oblige  Mr.  Webb, 
by  paying  to  T.  Ruff  or  order,  twenty  guineas  on  his  acccount," 
purports  to  be  an  order  to  pay,  and  is  a  negotiable  bill.  Ruff  v. 
Webb,  1  Esp.  129.  The  order  to  pay  need  not  be  in  any 
particular  form  ;  any  expression  amounting  to  an  order  or  direc- 
tion is  sufficient.  The  word  "^a^/"  itself  is  not  indispensable, 
and  any  synonymous  or  equivalent  expression  is  sufficient;  as, 
"  credit  in  cash,''''  which  means  pay  in  money.  Ellison  v.  Col- 
Ungridge,  9  M.,  G.  &  Sc.  570 ;  Hamilton  v.  Spottiswoode,  4  Exch. 
200.    The  payee   should  be  particularly  described,  so  that  he 


BILLS  AND  NOTES  551 

cannot  be  confounded  with  another  person  of  the  same  name, 
and  must  be  a  person  who  is  capable  of  being  ascertained  at  the 
time  the  instrument  is  made.  Yates  v.  JVasJi,  8  C.  B.  (N.  S.) 
581 ;  ante,  538.  A  bill  or  note  must  be  certain  as  to  the  amount 
to  be  paid.  An  order  directing  a  third  person  to  pay  for  a  speci- 
fied quantity  of  grain,  upon  which  no  price  was  fixed,  is  not  a 
negotiable  bill,  because  it  does  not  require  the  payment  of  a  sura 
certain.  Lent  v.  Hodgman,  15  Barb.  274.  So,  an  instrument  by 
which  a  party  promises  to  pay  to  another  a  sum  specified,  "and 
also  all  other  sums  which  may  be  due  to  him,"  with  interest,  is 
not  a  negotiable  note,  even  as  to  the  sum  named.  Smith  v. 
NigUilngale,  2  Stark.  375. 

Nor  is  an  instrument  which  is  drawn  in  the  form  of  a  note  for 
the  payment  of  a  certain  sum,  "first  deducting  thereout  any 
interest  or  money  due  to  the  maker,  on  any  account,"  a  valid 
negotiable  note.  Barlow  v.  Broad/iurst,  4  J.  B.  Moore,  471. 
Nor  is  a  draft  drawn  upon  commission  merchants,  requiring 
them  to  pay  to  the  order  of  the  drawer,  in  thirty  days  from  date, 
the  sum  of  one  thousand  dollars,  or  what  might  be  due  after  de- 
ducting all  advances  and  expenses,  available  as  a  negotiable 
security.  The  acceptance  being  for  an  uncertain  amount,  to  wit, 
for  the  balance  of  the  proceeds  of  unsold  goods,  is  not  negotiable. 
Cuslinian  v.  Haynes,  20  Pick.  132. 

Bills  and  notes  must  not  be  made  payable  out  of  a  particular 
fund  ;  for  when  so  drawn,  they  become  mere  special  engage- 
ments, which  are  to  be  treated  like  other  contracts  not  negotiable. 
Manger  v.  Sftannon,  6*1  N.  Y.  (16  Sick.)  251. 

An  order  was  drawn  upon  P.,  in  these  words:  "  Sir,  pay  to  G-., 
etc.,  or  order,  three  hundred  dollars  out  of  the  balance  that  will 
be  due  us  from  the  sales  of  cloths  that  you  now  have  or  may 
have  of  us,  together  with  the  woolen  machineiy  upon  which  you 
have  a  chattel  mortgage,  after  deducting  the  amount  you  have 
advanced  us,  with  your  charges  and  commissions.  M.  &  H." 
This  order  was  accepted,  as  follows:  " Accepted,  10th  Sept., 
1846."  In  an  action  upon  this  acceptance  by  Gr.,  etc.,  it  was  held, 
that  rlie  order  and  the  acceptance  were  made  with  reference  to  a 
particular  fund,  and  that  the  money  was  not  payable,  unless  that 
fund  was  sufficient  to  pay  the  debts,  advances,  etc.,  mentioned, 
as  well  as  the  order  ;  and  it  appearing  that  no  such  fund  existed, 
since  M.  &  H.  were  indebted  to  P.,  it  was  further  held  that  the 
action  could  not  be  maintained.  Gallery  v.  Prindle,  14  Barb. 
J8C  ;  and  see  Van  Wagner  v.  Terrett^  27  Barb.  181.   So,  a  promise 


662  BILLS  AND  NOTES. 

in  the  form  of  a  note,  which  is  payable  "  out  of  the  net  proceeds 
of  ore  to  be  raised  and  sold  from  a  certain  ore  bed,"  is  not  a 
negotiable  promissory  note.  Warden  v.  Bodge,  4  Denio,"  159  ^ 
and  see  Haydock  v.  LtjucTi,  2  Ld.  Raym.  1563 ;  Jenney  v.  Herle, 
id.  1361.  So,  an  order  by  a  landlord  drawn  on  his  tenant,  to  be 
paid  out  of  the  rent,  is  not  a  bill  of.  exchange,  and  a  verbal 
acceptance  by  the  tenant  is  valid.  Morton  v.  Naylor,  1  Hill, 
683.  So,  where  an  order  was  drawn  by  A,  upon  B,  for  the  pay- 
ment of  a  sum  certain  to  C,  as  soon  as  B  should  receive  it  out  of 
D's  money,  and  B  accepted  the  order  generally,  but  refused  to 
pay  the  money  thereon  ;  in  an  action  against  B,  in  favor  of  C,  it 
was  held  that  no  action  lay  upon  the  instrument,  because  it  was 
not  a  negotiable  bill  of  exchange.  DawTces  v.  De  Lorane,  3  Wils. 
207,  213 ;  and  see  Atkinson  v.  ManTcs,  1  Cow.  692.  The  presi- 
dent of  a  corporation  wrote  a  letter  stating,  in  substance,  that  if 
B,  a  person  in  its  employ,  would  make  an  order  on  its  treasurer 
for  any  portion  of  his  salary,  and  the  person  in  whose  favor  the 
order  was  drawn  should  file  it  with  the  treasurer,  the  sum  would 
be  paid  monthly  so  long  as  B  remained  in  the  employ  of  the 
company,  and  the  order  "remained  unrevoked."  B  drew  an 
order  directing  the  treasurer  to  pay  N.  three  hundred  dollars, 
in  monthly  payments  of  fifty  dollars,  and  charge  the  same  to  his 
salary  account.  The  order  and  letter  were,  for  a  valuable  con- 
sideration, delivered  to  N.,  who  presented  them  to  the  treasurer, 
and  by  his  direction  filed  them  with  the  cashier.  Subsequently, 
B  wrote  to  the  cashier  stating,  that  "if  not  accepted,"  he  coun- 
termanded the  order.  B  remained  in  the  employ  of  the  company 
for  six  months  thereafter,  at  a  salary  of  one  hundred  and  eighteen 
dollars  a  month.  The  defendant  refused  to  pay  any  thing  to  N., 
upon  B'  s  order,  and  it  was  held  that  no  action  could  be  main- 
tained against  the  corporation.  Shaver  v.  Western  Union 
Telegraph  Co.,  57  N.  Y.  (12  Sick.)  459. 

Whenever  a  bill  or  note  is  made  payable  out  of  a  particular 
fund,  and  promise  of  payment  is  made  contingent  upon  the  suffi- 
ciency of  the  fund,  and  that  is  inadequate,  the  promise  is  not 
binding.  If  the  fund  is  sufficient,  an  action  may  be  maintained 
upon  proper  pleadings  and  evidence,  though  no  action  will  lie 
upon  it  as  a  mere  bill  or  note,  since  it  is  not  a  negotiable  note 
under  the  statute.  Wilder  v.  Sprague,  50  Me.  354.  An  order 
drawn,  payable  out  of  a  particular  fund,  is  not  an  assignment 
pro  tanto  of  the  fund,  unless  a  consideration  was  paid  therefor. 
Alger  v.  Scott,  54  N.  Y.  (9  Sick.)  14. 


BILLS  AND  NOTES.  553 

There  is  a  plain  distinction  between  bills  and  notes  whicli  are 
payable  out  of  a  particular  fund,  and  those  which  are  payable 
absolutely,  but  are  chargeable  to  a  particular  account.  A  recital 
in  a  bill  or  note  that  certain  collateral  securities  have  been  given 
for  the  payment  of  the  money  specified,  does  not  in  any  manner 
affect  the  validity  of  the  bill  or  note,  or  its  negotiability.  Fan- 
court  V.  Thome,  9  Ad.  &  Ellis  (N.  S.)  312. 

An  instrument,  which,  in  its  terms  and  form,  is  a  negotiable 
promissory  note,  does  not  lose  that  character  because  it  also 
states  that  the  maker  has  deposited  bonds  as  a  collateral  security 
for  its  payment,  and  that  he  agrees  on  non-payment  of  the  note 
at  maturity,  tlmt  they  may  be  sold  in  a  manner,  and  upon  a 
notice  specified,  and  he  will  pay  any  deficiency  necessary  to 
satisfy  the  note,  and  the  expenses  of  such  sale.  Arnold  v.  Rock 
River,  etc.,  R.  R.,  5  Duer,  207;  and  see  Haussoullier  v.  Hart- 
sincJc,  7  Term,  733. 

A  note  in  this  form  is  valid  and  negotiable  :  "I  promise  to 
pay  to  A,  or  his  order,  at  three  months  after  date,  the  sum  of  one 
hundred  dollars,  as  per  memorandum  of  agreement."  Jury  v. 
Barker,  1  Ellis,  Bla.  &  Ellis,  459,  460,  and  cases  in  note. 

A  statement  in  a  written  warrant  of  a  municipal  corporation 
for  the  payment  of  a  sum  certain  at  a  fixed  time  to  E.  S.,  or 
order,  that  the  same  is  payable  "  out  of  any  funds  belonging  to 
the  city,  not  before  specially  appropriated,"  and  "  chargeable  to 
general  city  fund,"  does  not  deprive  the  instrument  of  the 
character  of  a  negotiable  promissory  note.  Bull  v.  Sims,  23  N. 
Y.  (9  Smith)  570.  A  bill  in  the  following  form  :  "Messrs.  A 
B  &  Co.,  please  pay  to  the  order  of  C  D,  the  sum  of  five  hun- 
dred dollars,  on  account  of  24  bales  cotton,  shipped  to  you  as 
per  bill  lading,  by  steamer  Colorado,  inclosed  to  you  in  a  letter, 
E  F,"  is  a  negotiable  bill  of  exchange  under  the  statute.  Lower y 
V.  Steward,  25  N.Y.  (11  Smith)  239;  affirming  S.  C,  3  Bosw.  505. 
The  court  said,  page  511 :  "The  draft  in  question  was  in  form  a 
bill  of  exchange.  It  was  an  unconditional  order  upon  the  defend- 
ants, to  pay  a  sum  certain  therein  named,  to  the  order  of  the 
payee.  Although  the  account  to  which  it  should  be  charged  was 
mentioned,  it  was  not,  by  its  terms,  directed  to  be  paid  out  of  a 
particular  fund.  Had  it  been  accepted,  it  was  due  immediately, 
whether  the  cotton,  to  account  of  which  it  was  to  be  charged, 
had  been  sold  or  not." 

It  is  quite  common  to  specify  in  a  bill  the  object  or  purpose 
for  which  it  was  drawn,  as  well  as  the  account  to  which  it  is  to 

Vol.  L~70 


654  BILLS  AND  NOTES. 

be  cliarged,  witliout  intending  to  make  the  order  to  pay  either 
conditional  or  contingent;  and,  therefore,  a  bill  in  this  form  is 
negotiable,  when  drawn  underneath  a  promissory  note:  "  A  B, 
Esq.,  please  pay  the  above  note,  and  hold  it  against  me  in  our 
settlement,  CD."  Leonard  v.  Mason,  1  Wend.  622.  So,  when 
a  bill  was  drawn  payable  one  month  after  date,  and  the  drawee 
was  directed  to  pay  to  A  B,  or  order,  a  specified  sum,  ''  as  his 
quarterly  half  pay  from  June  24,  to  September  27,"  which  was 
accepted  by  the  drawee,  it  was  held  to  be  a  negotiable  bill,  and 
an  action  sustained  against  the  acceptor.  McLeod  v.  Snee,  2 
Strange,  762,  etc.;  2  Ld.  Eaym.  1481.  A  statement  of  a  particu- 
lar fund  in  a  draft  or  bill  of  exchange,  if  inserted  merely  as  a 
direction  to  the  drawee  how  to  reimburse  himself,  will  not  viti- 
ate it.    Kelley  v.  Mayor,  etc.,  of  Brooklyn,  4  Hill,  263. 

Bills  and  notes  are  always  written  or  printed,  or  these  methods 
are  combined,  when  the  instrument  is  partly  printed  and  partly 
written.  But,  when  such  an  instrument  is  made  by  filling  up  a 
printed  form,  it  is  still  usually  termed  a  written  instrument,  and 
is  as  valid  as  a  note'  or  bill  which  is  wholly  written. 

The  statute  requires  that  all  notes  shall  be  in  writing,  and 
signed  by  the  maker  or  his  duly  authorized  agent.  1  R.  S.  721, 
§§  1,  2  (Edm.  ed.),  quoted  ante,  544. 

The  mode  of  writing  is  not  material;  it  may  be  in  pencil  mark, 
or  in  ink;  on  paper,  or  on  parchment,  or  on  any  othei"  conveni 
ent  substitute  for  paper.    Geary  v.  PJiysic,  5  Barn.  &  Cress.  234 
Brown  v.  Butchers  and  Drovers'  Bank,  6  Hill,  443  ;  Clason  v 
Bally,  14  Johns.  484 ;  Draper  v.  Pattina,  2  Speers  (S.  C),  292 
Beed  v.  BourJc,  14  Tex.  329  ;    Closson  v.  Stearns,  4  Vt.  11 
Jeffrey  v.  Walton,  1  Stark.  267.    The  signature  to  a  bill  or  note, 
or  indorsement,  may  be  made  by  writing  the  name  in  full,  or  by 
writing  a  part  of  it  in  initials,  and  the  remainder  in  full,  or  it 
will  be  valid  if  nothing  but  the  initials  of  the  entire  name  are 
employed,  if  those  are  written  for  the  purpose  of  executing  the 
instrument.      Palmer  v.  Stephens,  1  Denio,  471 ;    Merchants^ 
Bank  v.  Spicer,  6  Wend.  443.    A  i)arty  signing  his  name  to  an 
instrument  with  his  initials,  intending  thereby  to  bind  himself, 
is  as  effectually  bound  as  he  would  be  by  writing  his  name  in 
fall.  lb.     So  a  party  may  use  figures  instead  of  his  initials,  or 
his  name  in  full;  and  where  a  party  placed  the  figures,  "1,  2, 
8,"  upon  the  back  of  a  bill  of  exchange,  by  way  of  substitute 
for  his  name,  intending  thus  to  bind  himself  as  indorser,  it  was 
held  to  be  a  valid  indorsement,  although  it  appeared  that  the 


BILLS  AND  NOTES,  655 

indorser  could  write.  Brown  v.  Butchers  and  Dromrs'  Bank^ 
6  Hill,  443.  So  of  a  mark  in  the  form  of  a  cross,  if  made  by 
persons  who  cannot  write  their  name,  and  that  is  a  valid  signa- 
ture. George  v.  Surrey,  1  Moody  &  Malkin,  516.  It  is  usual 
to  have  a  subscribing  witness  to  such  a  signature  by  a  mark, 
though  this  is  not  necessary;  and  the  signature  may  be  proved 
by  a  witness  from  inspection,  if  he  has  seen  the  party  execute, 
instruments  in  that  manner.  lb.  A  mark  is  a  good  signing  of 
a  promissory  note,  although  there  is  no  sabscribing  witness  to  it. 
Willougliby  v.  Moulton,  47  N.  H.  205  ;  ShanJc  v.  BuUcli,  28  Ind. 
19  ;  Hilborn  v.  Alford,  22  Gal.  482.  When  a  signature  is  made 
by  a  mark,  it  is  commonly  the  case  that  the  writer  of  the  instru- 
ment writes  the  name  of  the  maker  and  leaves  a  blank  space 
between  the  christian  and  the  surname  for  making  the  mark 
between  the  words,  "his  mark,"  etc. 

The  signature  of  the  drawer  or  maker  of  a  bill  or  note  is 
usually  subscribed  in  the  right  hand  corner  ;  but  it  is  sufficient 
if  written  in  any  other  part.  Thus,  "I,  J.  S.,  promise  to  pay," 
is  a  sufficient  signature  to  a  promissory  note.  Taylor  v.  Doh- 
bins,  1  Strange,  399 ;  Saiidersori  v.  Jackson,  2  Bos.  &  Pul.  238. 
It  is  immaterial  on  what  part  of  a  note  the  maker' s  signature  is 
placed,  so  that  he  signs  it  as  original  maker.  Schmidt  v. 
Schmaelier,  45  Mo.  502.  Without  the  drawer's  signature,  a  bill 
payable  "to  my  order,"  though  accepted,  is  of  no  force,  either 
as  a  bill  of  exchange  or  as  a  promissoiy  note.  Stoessenger  v. 
South  E.  Railway  Co.,  3  E.  &  B.  553 ;  Ooldsmid  v.  Hampton, 
5  C^B.  (N.  S.)  94;  3fcCaU  v.  Taylor,  19  id.  301 ;  May  v.  Miller, 
27  Ala.  515;  Terns  v.  Young,  1  Mete.  (Ky.)  197. 

In  writing  bills  and  notes  it  is  usual  to  state  the  time  when, 
and  the  place  where,  they  were  made.  At  the  common  law  this 
is  not  necessary  to  the  validity  of  the  instrument,  and  a  note  is 
valid  in  this  State  without  a  date  or  time  of  payment.  Mitchell 
V.  Culoer,  7  Cow.  336 ;  Wexel  v.  Qameron,  31  Tex.  314.  A  date 
to  the  note  is  not  essential.  Michigan  Ins.  Co.  v.  Leamnworih, 
30  Vt.  11.  When  no  date  is  specified,  a  bill  or  note  will  take 
effect  from  the  time  of  its  delivery,  which  may  be  established  by 
evidence.  If  a  promissory  note  is  not  dated  it  will  be  considered 
as  dated  at  the  time  it  was  made.  Seldonridge  v.  Qonnahle,  32 
Ind.  375.  Where  there  is  no  date  to  a  note  benring  interest  from 
date,  the  date  of  its  delivery  may  be  shown,  and  interest  com- 
puted from  that  date.  Richardson  v.  Ellet,  10  Tex.  190.  Brit 
a  bill  of  exchange  or  a  promissory^ note  has  no  legal  inception 


656  BILLS  AND  NOTES. 

or  vitality  until  it  is  delivered  to  some  person  as  evidence  of  a 
subsisting  debt.  Hall  v.  Wilson^  16  Barb.  548.  If  a  note  is 
dated,  and  it  is  delivered  after  the  time  when  it  is  dated,  it  will 
be  valid  from  the  time  of  delivery  only,  and  it  is  to  be  considered 
as  though  drawn  on  the  day  when  it  was  delivered.  Lansing  v. 
Game,  2  Johns.  300.  But  although  the  date  of  a  note,  bill  or 
check  is  not  material  to  its  validity,  it  is  so  in  respect  to  its 
period  of  payment.  It  may  be  ante-dated  or  post-dated  without 
aifectiiig  its  legal  character  as  an  obligation,  but  the  date  deter- 
mines when  it  becomes  paj^able.  Godin  v.  Bank  of  Common- 
wealth, 6  Duer,  76,  82 ;  Brewster  v.  McCardell^  8  Wend.  478 ;, 
Pasmore  v.  North,  13  East,  517  ;  Gray  v.  Wood,  2  Harr.  &  Johns. 
328 ;  RicJiter  v.  Selm,  8  Serg.  &  R.  425. 

The  payment  by  a  bank  of  a  post-dated  check  before  the  day 
upon  which  it  is  dated  is  a  payment  in  its  own  wrong,  and  the 
money  so  paid  remains  to  the  credit  of  the  drawer.  The 
assignee,  in  good  faith  of  this  fund,  may  maintain  an  action 
against  the  bank  for  its  recovery.  Godin  v.  Bank  of  Conumon- 
wealth,  6  Duer,  76. 

A  note  post-dated,  and  not  negotiated  before  the  day  of  its 
date,  is  recoverable  by  the  indorsee  ;  and  its  transfer  before  the 
day  of  its  date  affords  no  cause  of  suspicion,  so  as  to  put  the 
indorses  on  inquiry  and  subject  him  to  the  equities  existing 
between  the  original  parties.  Brewster  v.  McCardell,  8  Wend. 
478  ;  Pasmore  v.  North,  13  East,  517. 

It  is  customary  to  date  bills  and  notes  on  the  day  they^are 
made,  and  therefore,  in  the  absence  of  proof  to  the  contrary,  the 
delivery  will  be  presumed  to  have  been  made  on  that  day. 
Woodford  v.  Darwin,  3  Vt.  82 ;  Lansing  v.  Gaine,  2  Johns. 
300.  The  indorsee,  in  an  action  against  the  maker,  may  prove 
that  there  was  a  mistake  in  the  date  of  the  note.  Drake  v. 
Pogers,  32  Me.  624.  Although  a  note  bears  date  on  Sunday,  it 
may  be  shown  to  have  been  made  and  delivered  on  a  different 
day.  Aldridge  v.  Branch  Bank,  17  Ala.  45.  And  though 
signed  on  Sunday,  if  delivered  on  any  other  day,  it  is  valid. 
Ba?ik  of  Cumberland  v.  Mayherry,  48  Me.  198. 

The  place  where  a  note  or  bill  was  made  ought  always  to  be 
inserted  in  it,  as  it  is  presumptive  evidence  of  the  residence  of 
the  maker  at  that  place.  Taylor  v.  Snyder,  3  Denio,  145  ;  Gal- 
pin  V.  Hard,  3  McCord,  394.  But  the  dating  of  a  promissory 
note  at  a  particular  place  does  not  make  that  the  place  of  pay- 
ment, or  authorize  a  demand  to  be  made  at  that  place  for  the 


BILLS  AND  NOTES.  557 

purpose  of  charging  an  indorser.  Id.;  Anderson  v.  Dralce,  14 
Johns.  114.  The  presumption  is  that  a  note  is  payable  at  the 
place  where  it  is  dated.    Richetts  v.  Pendleton^  14  Md.  820. 

Where  the  drawer  of  a  bill  of  exchange  dates  it  generally,  as 
at  "Albany,"  it  is  suflBcient  to  send  him  a  notice  of  dishonor  by 
mail,  directed  to  him  at  that  place.  Mann  v.  Moors,  Ryan  & 
Moody,  249.  Bills  and  notes  are  generally  superscribed  in 
figures  for  the  amount  which  is  written  in  the  body  of  the 
instrument.  This  is  a  mere  matter  of  convenience,  and  ordi- 
narily it  is  not  of  any  importance  to  the  validity  of  the  instru- 
ments. Though  there  may  be  instances  when  such  figures  may 
be  useful,  as,  for  instance,  when  the  body  of  the  bill  or  note  is 
left  blank  as  to  the  amount  payable  by  it.  In  such  a  case  the 
blank  in  the  body  may  be  filled  up  by  the  holder  so  as  to  corre- 
spond with  the  sum  specified  in  the  figures  in  the  margin. 
Where  there  is  a  discrepancy  between  the  amount  stated  in  the 
margin  and  that  mentioned  in  the  body  of  the  instrument,  the 
latter  prevails,  because  the  former  is  a  mere  memorandum,  while 
th.e  w(5rds  used  in  the  body  of  the  note  constitute  the  contract. 
Where  the  sum  intended  to  be  made  payable  by  a  note  is  neither 
expressed  in  the  body  of  it,  nor  in  the  margin  in  figures,  the 
holder  may  fill  up  the  blank  for  the  sum  intended.  And  where 
a  note  was  intended  to  be  made  payable  for  eight  hundred  dol- 
lars, and  the  note  was  properly  filled  up  as  a  promise  to  pay 
"eight,"  omitting  the  words  "hundred  dollars,"  it  was  held 
that  the  holder  might  insert  those  words.  Boyd  v.  Brotherson, 
10  Wend.  93 ;  and  see  Olute  v.  Small,  17  id.  238.  AVhere  a 
blank  space  is  left  in  a  promissory  note,  after  the  word  "at,"  in 
the  place  where  the  place  of  payment  is  usually  mentioned,  the 
holder  of  the  note  is  authorized,  by  an  implied  authority,  to  fill 
the  blank.  Kitclien  v.  Place,  41  Barb.  465.  If  an  indorser 
delivers  to  the  maker  a  promissory  note  with  the  time  and  place 
of  payment  in  blank,  this  will  authorize  the  maker  to  fill  the 
blanks  as  to  time  and  place  of  payment.  McOrath  v.  Clark,  56 
N.  Y.  (11  Sick.)  35  ;  15  Am.  Rep.  372  ;  Gillaspie  v.  Kelley,  41 
Ind.  158  ;  13  Am.  Rep.  318.  But  this  will  not  authorize  him  to 
add  the  words  "  with  interest."  lb.  One  who  makes  and  delivers 
to  another  a  promissory  note,  perfect  in  form,  except  that  a 
blank  is  left  after  the  word  "at,"  for  the  place  of  payment,  it 
carries  with  it  an  implied  authority  to  any  bona  fide  holder  to 
till  the  blank.  Redlich  v.  Doll,  54  N.  Y.  (p  Sick.)  234.  A  maker 
of  a  note  for  $300,  who  leaves  a  blank  which  is  filled  up  so  as 


558  BILLS  AND  NOTES. 

to  road  $320,  will  be  liable  for  that  sum  to  a  lona  fide  holder. 
Yocum  V.  Smith,  63  111.  321 ;  14  Am.  Rep.  120.  But  if  a  note  is 
perfect  when  it  is  delivered,  the  holder  is  not  authorized  to  make 
any  additions  to  it,  even  though  there  is  a  blank  space  sufficient 
to  contain  the  alteration.  Bruce  v.  Westcott,  3  Barb.  374  ;  Motc- 
head  v.  ParJcershurgh  National  Bank,  5  W.  Va.  74 ;  13  Am. 
Rep.  636.  There  may  be  an  exception  to  this  rule  in  the  case  of 
an  evident  mistake,  as  where  a  sum  is  agreed  upon  by  a  debtor 
as  due  from  him  to  his  creditor,  and  the  debtor  draws  a  note  in 
which  he  states  the  true  amount  in  the  margin,  in  figures,  but 
by  mistake  the  body  of  the  note  is  filled  up  with  a  smaller  sum, 
it  was  held  that  the  creditor  might  alter  the  body  of  the  note  so 
as  to  make  it  correspond  with  the  true  sum.  Clute  v.  Small,  17 
Wend.  238;  and  see  Brutt  v.  Picard,  Ryan.&  Moody,  37; 
Bruce  v.  Westcott,  3  Barb.  374. 

The  parties  to  a  bill  or  note  may  fix  upon  any  time  that 
they  choose  as  the  time  of  its  payment.  Though,  as  has  been 
seen,  ante,  549,  such  time  must  not  be  left  to  be  determined  by 
an  uncertain  event  which  may  never  occur.  If  the  time  fixed  is 
certain  to  arrive,  or  the  event  upon  which  payment  is  to  be  made 
is  certain  to  occur,  the  note  will  be  valid,  although  the  period 
fixed  for  payment  may  be  very  remote. 

It  is  not  necessary  that  the  precise  time  of  payment  should  be 
fixed,  if  it  is  made  to  depend  upon  the  happening  of  an  event 
which  is  certain  to  take  place,  though  the  particular  time  of  its 
occurrence  is  not  certain,  ante,  550.  And  there  may  be  instances 
in  which  a  note  is  valid,  though  it  is  made  payable  apon  the  hap- 
pening of  an  event  which  may  never  take  place.  The  object  of 
requiring  a  certain  time  of  payment  is  intended  for  the  advan- 
tage of  the  creditor,  and  for  the  purpose  of  preventing  a  debtor 
from  delaying  payment,  or  the  maturity  of  his  debt.  And, 
therefore,  a  note  is  valid  even  when  made  payable  upon  an 
uncertain  event  which  is  within  the  control  of  the  creditor ;  as, 
for  instance,  where  a  note  is  made  payable  in  a  given  number 
of  days  after  sight  or  after  demand.  Clayton  v.  Gosling^  5  B. 
&  C.  360.  It  is  not  necessary  that  any  time  of  payment  should 
be  specified,  and  in  that  case  the  note  will  be  payable  imme- 
diately. Tliompson  v.  Ketcham,  8  Johns.  190 ;  HerricJc  v.  Ben- 
nett, id.  374.  Some  of  the  cases  hold  that  a  note  which  does  not 
specify  any  time  of  payment  is  payable  on  demand.  Porter  v. 
Porter,  51  Me.  376 ;  Jlolmes  v.  West,  17  Cal.  623 ;  Salinas  v. 
Wright,  11  Tex.  672. 


BILLS  AND  NOTES.  559 

In  an  action  on  a  bank  note  payable  on  demand  generally,  and 
not  at  a  particular  place,  a  demand  of  payment  is  not  necessary 
before  the  commencement  of  a  suit.  Haxtun  v.  BisJtop,  3  Wend. 
13.  Where  a  note  is  payable  on  demand,  with  interest,  no  de- 
mand is  necessary  before  bringing  an  action  on  it.  Hirst  v. 
BrooTcs,  50  Barb.  334 ;  Wheeler  v.  Warner,  47  N.  Y.  (2  Sick.)  519; 
7  Am.  Rep.  478.  Nor  is  a  demand  necessary  on  a  note  payable 
at  a  particular  place  ;  but  if,  in  such  a  case,  the  defendant  shows 
that  he  was  ready  at  the  place  to  make  payment,  and  brings  the 
money  into  court,  he  discharges  himself  from  interest  and  costs. 
Haxtun  v.  Bishop,  3  Wend.  13  ;  Wolcott  v.  Van  Santnoord,  17 
Johns.  248 ;  Fair  child  v.  Ogdensburgh,  etc.,  R.  R.,  15  N.  Y.  (1 
Smith)  339  ;  Ti'oy  City  Bank  v.  Grant,  Hill  «&  Denio,  119  ;  Hills 
V.  Place,  48  N.  Y.  (3  Sick.)  520  ;  8  Am.  Rep.  568 ;  LocTclin  v. 
Moore,  57  N.  Y.  (12  Sick.)  360. 

But  where  a  note  is  payable  in  specific  articles  without  men- 
tioning any  day  or  place  of  payment,  it  is  in  law  payable  on  de- 
mand, and  an  actual  demand  is  necessary  before  an  action  can 
be  maintained.  LoMell  v.  HopMns,  5  Cow.  516 ;  Rice  v. 
Churchill,  2  Denio,  145 ;  DurJcee  v.  Marshall,  7  Wend.  312 ; 
Cook  V.  FerraVs  Administrators,  13  Wend.  285. 

In  all  contracts,  including  bills  and  notes,  time  is  to  be  com- 
puted by  calendar  and  not  by  lunar  months,  unless  otherwise 
expressed  in  the  instrument.     1  R.  S.  563,  §  4,  Edm.  ed. 

A  promissory  note  payable  on  demand,  with  interest,  is  a  con- 
tinuing security ;  an  indorser  remains  liable  until  an  actual  de- 
mand, and  the  holder  is  not  chargeable  with  neglect  for  omitting 
to  make  such  demand  within  any  particular  time.  Merritt  v. 
Todd,  23  N.  Y.  (9  Smith)  28  ;  Brooks  v.  Mitchell,  9  Mees.  & 
Wels.  15  ;  Barough  v.  White,  4  Barn.  &  Cress.  325.  These  cases 
qualify  the  old  doctrine  that  a  bill  or  note  payable  on  demand 
must  be  presented  in  a  reasonable  time  in  order  to  charge  an 
indorser.  But  see  Herrick  v.  WooUerton,  41  N.  Y.  (2  Hand)  581 ; 
1  Am.  Rep.  461  ;  WJieeler  v.  Warner,  47  N.  Y.  (2  Sick.)  519  ;  7 
Am.  Rep.  478.     And  see  post. 

When  a  bill  of  exchange  is  drawn,  the  theory  is  that  the  drawee 
has  in  his  hands  funds  of  the  drawer  sufficient  to  pay  the  bill, 
and,  therefore,  a  bill  ought  to  be  so  drawn  as  to  imply  an  order 
to  pay  the  amount  specified.  Little  v.  Blackford,  1  Moody  & 
Malkin,  171.  And  if  the  order  shows  on  its  face  that  there  is  no 
right  to  order  the  payment  of  the  money,  it  will  not  be  a  bill  of 
exchange.  lb. 


660  BILLS  AND  NOTES. 

Foreign  bills  of  exchange  are  usually  drawn  in  several  parts, 
the  whole  of  which  constitute  what  is  called  a  set.  These  parts 
are  usually  three  in  number,  though  there  may  be  more  if  the 
parties  choose.  The  drawer  usually  delivers  to  the  payee  three 
bills  of  the  same  tenor  and  date,  each  of  which  should  refer  to 
the  other  parts  of  the  set,  and  express  that  payment  of  it  is  con- 
ditional on  the  other  parts  of  like  "  tenor  and  date "  as  itself 
remaining  unpaid  at  maturity.  One  or  more  of  these  parts  of 
the  bill  may  be  circulated  while  another  is  forwarded  for  accept- 
ance. A  bill  of  exchange  drawn  in  one  State  on  persons  living 
in  another  is  to  be  treated,  it  seems,  as  a  foreign  and  not  as  an 
inland  bill.  Wells  v.  Whitehead,  15  Wend.  527;  ffalliday  v. 
McDozigall,  22  id.  264  ;  Commercial  BanTi  of  Ky.  v.  Varnum, 
49  N.  Y.  (4  Sick.)  269. 

Payment  of  anj?-  one  of  the  parts  of  the  bill  to  a  holder  who 
is  entitled  to  receive  the  money  is  payment  of  the  whole  set  or 
the  entire  bill.  Holdsioorth  v.  Hunter,  10  Barn.  &,  Cress.  449  ; 
Perreira  v.  Jopp,  id.,  note,  page  450 ;  Wells  v.  Whitehead,  15 
Wend"!  527,  528. 

When  the  second  of  a  set  of  three  bills  of  exchange  is  protested 
for  non-acceptance,  and  an  action  is  brought  against  the  indorser, 
and  the  plaintiff  declares  on  the  first  of  the  set  he  is  not  entitled 
to  recover,  unless  he  produces  the  second  of  the  set  which  was 
protested,  or  accounts  satisfactorily  for  its  non-production  ;  the 
defendant  may  require  its  production  to  guard  against  a  subse- 
quent claim  by  a  bona  fide  holder,  or  by  an  acceptor  who  had 
paid  supra  protest  for  his  honor.  Wells  v.  Whitehead,  15 
Wend.  527.  Each  part  of  a  set  ought  to  refer  to  all  the  others, 
so  that  the  drawer  may  not  be  compelled  to  pay  twice  over. 
Damson  v.  Robertson,  8  Dow.  218,  228.  To  prevent  mistakes 
and  double  payment,  neither  party  to  a  bill  should  pay,  unless 
the  part  protested  is  presented  and  surrendered.  For  if  the 
drawee  pays  on  receiving  the  second  of  the  set,  thfe  indorser  who 
is  not  aware  of  the  fact  may  be  misled  and  be  induced  to  pay 
again  on  receiving  the  first  of  the  set  accompanied  with  notice  of 
the  protest.     Durkin  v.  Cranston,  7  Johns.  442. 

For  some  purposes  all  the  parts  of  the  set  constitute  but  one 
bill ;  but  they  are  not  one  so  that  the  protest  of  either  is  a  pro- 
test of  all,  nor  so  as  to  dispense  with  the  necessity  of  suing  on 
that  particular  bill  which  has  been  dishonored.  Wells  v.  White- 
head, 15  Wend.  527.  Foreign  bills  must  be  protested  for  non- 
acceptance  and  non-payment,  or  the  drawer  and  indorser  will  be 
discharged.  lb. 


BILLS  AND  NOTES.  561 


ARTICLE  IV. 

•  KEGOTIABILITT  OF  BILLS  AND  NOTES. 

Section  1.  In  general.  When  a  negotiable  bill  or  note  is  taken 
in  good  faith,  and  for  value,  before  it  is  due,  the  holder  may 
recover  the  full  amount  of  it  without  reference  to  any  equities 
which  may  exist  between  prior  parties  to  it.  Bills  and  notes 
not  negotiable  are  valid  instruments  ;  but  they  are  taken  subject 
to  all  existing  equities,  even  when  taken  in  good  faith,  for  value, 
and  before  maturity.  It  is  evident,  therefore,  that  for  all  com- 
mercial purposes,  it  is  important  that  the  holder  should  know 
whether  the  bill  or  note  transferred  to  him  is  negotiable,  or 
whether  it  is  unnegotiable.  The  law  has  not  determined  that 
any  particular  phraseology  shall  be  employed  for  the  purpose 
of  rendering  a  bill  or  note  negotiable.  If  any  words  are  used 
which  indicate  that  the  maker,  or  any  other  party  to  the  instru- 
ment, intended  that  it  should  be  negotiable,  the  law  will  give 
effect  to  that  intention,  so  far  as  that  person  is  concerned.  United 
States  V.  WJiite,  2  Hill,  59,  62  ;  Willets  v.  Phoenix  Bank,  2  Duer, 
121;  Chit,  on  Bills,  218,  Am.  ed.  of  1839.  The  usual  mode  of 
making  notes,  bills  and  checks  negotiable  is  by  drawing  them 
payable  to  a  particular  person,  or  order,  or  bearer,  or  to  the 
order  of  the  drawer,  or  to  bearer  generally.  It  must  be  remem- 
bered, however,  that  such  negotiable  words  will  not  of  them- 
selves render  every  contract  a  bill  or  note.  It  is  in  those  cases 
only  in  which  they  are  inserted  in  an  instrument  which  the  law 
recognizes  as  capable  of  possessing  negotiable  qualities,  that 
they  can  have  the  effect  of  rendering  the  instrument  negotiable. 
An  instrument  in  the  form  of  a  note,  payable  in  money,  to  a  cer- 
tain person,  or  order,  is  not  negotiable  if  a  seal  is  affixed  to  the 
maker's  signature.  ClarJc  v.  Farmers'  Manufacturing  Com- 
pany, 15  Wend.  256.  But  when  by  mistake  and  ignorance  a 
seal  was  attached  to  the  firm  name  signed  to  a  note  given  for 
value,  a  recovery  was  allowed  in  equity  in  the  same  manner  as 
though  there  had  been  no  seal.  Lynam  v.  Calif  er,  64  N.  C.  572. 
A  note  payable  in  chattels  is  not  negotiable  though  payable  to 
bearer,  or  to  order,  because  its  negotiability  is  destroyed  from 
the  fact  that  it  is  payable  in  chattels  instead  of  money.  It  is  the 
custom  of  merchants,  adopted  into  the  mercantile  code,  that 
renders  bills  of  exchange  capable  of  assignment  as  they  now 
are;  and  it  is  by  virtue  of  the  statute  that  promissory  notes  are 

Vol.  L  — 71 


562  BILLS  AND  NOTES. 

placed  upon  the  same  footing  as  bills  in  regard  to  their  negotia- 
bility.    Ante,  544,  §  1. 

When  a  bill  or  note  is  not  made  payable  to  a  certain  person 
by  name,  adding  ''or  bearer,"  or  the  words,  "or  order,"  it  must 
have  inserted  into  it  terms  of  equivalent  import,  in  order  to 
make  it  negotiable.  It  is  not  necessary  that  the  instrument 
should  be  made  payable  to  any  person  by  name,  for  it  will  be 
equally  valid  if  made  payable  to  "the  bearer,"  as  bank  notes  or 
bills  are  drawn.  All  bills  and  notes  which  are  drawn  payable 
to  a  certain  person  or  bearer,  or  to  bearer  generally,  are  transfer- 
able from  person  to  person  without  any  indorsement  whatever. 
And  if  the  payee  of  a  note  payable  to  him  or  hearer  put  his 
name  on  the  back,  he  may  be  sued  as  an  indorser,  in  the  same 
manner  as  though  the  note  had  been  made  payable  to  him  or 
order.  Brush  v.  Reeves,  3  Johns.  439 ;  Davis  v.  Wilson,  31  Tex. 
136  ;  Banlc  of  England  v.  Newman,  1  Ld.  Raym.  442.  But  a 
note  payable  to  A,  or  bearer,  may  be  negotiated  by  delivery 
only,  even  though  it  is  indorsed  by  A.  Wilhour  v.  Turner,  5 
Pick.  526  ;  Dole  v.  WeeTcs,  4  Mass.  451.  When  a  note  is  drawn 
payable  to  the  person  who  shall  thereafter  indorse  the  same,  it  is 
a  negotiable  note  ;  and  the  person  who  writes  his  name  on  the 
back  of  it  becomes  liable  on  it  as  an  indorser.  United  States  v. 
White,  2  Hill,  59. 

The  makers  of  a  note  cannot  object  that  a  note  was  negotiated 
contrary  to  its  terms,  when  they  themselves  put  it  into  circula- 
tion ;  as  where  a  note  was  made  for  the  purpose  of  renewing  a 
similar  note,  and  it  was  made  "payable  and  negotiable  at  the 
Bank  of  Ontario,"  but  the  makers  turned  it  out  in  payment  of 
a  debt  which  they  owed.  War  dell  v.  Hughes,  3  Wend.  414.  A 
direction  in  a  note,  making  it  payable  at  a  given  bank,  is  equiva- 
lent to  a  request  to  the  bank  to  pay  it  out  of  any  funds  which 
the  maker  has  in  the  bank.     Griffin  v.  Rice,  1  Hilt.  184,  ante. 

A  written  instrument  for  the  payment  of  money  upon  a  con- 
tingency may  be  transferred  by  delivery  merely,  although  pay- 
able "  to  order."  Such  an  instrument  is  not  negotiable,  and  no 
indorsement  is  requisite  to  transfer  the  title.  A  delivery,  with 
intent  to  vest  in  the  party  claiming  under  it  all  the  payee's  inter- 
est, is  sufficient.    Loftus  v.  Clark,  1  Hilt,  310. 

Bills  and  notes  for  the  payment  of  money,  but  without  wor^P 
of  negotiability,  are  valid  either  at  common  law  or  under  the 
statute.  Ooshen  Turnpike  Co.  v.  Hurtin,  9  Johns.  217  ;  Down- 
ing V.  Backenstoes,  3  Gaines,  137  ;   Tingling  v.  Cohass,  18  Md. 


BILLS  AND  NOTES.  563 

148 ;  Hackney  v.  Jones,  3  Humph.  612  ;  Fernon  v.  Farmer,  1 
Harr.  32  ;  Reed  v.  Murphy,  1  Kelly,  236  ;  Burchell  v.  Slocock,  2 
Ld.  Raym.  1545  ;  Smith  v.  Kendall,  6  Term,  123.  In  this  State 
most  choses  in  action  are  assignable  so  a.s  to  authorize  an  action 
in  the  name  of  the  assignee.  This  subject  will  be  noticed  here- 
after in  relation  to  indorsements  and  transfers  of  such  instru- 
ments. 

In  every  negotiable  bill  or  note,  it  is  implied  that  there  is  a 
sufficient  valid  consideration,  and  it  is  not  essential  that  the 
words  "  for  value  received,"  should  be  expressed  in  the  instru- 
ment. Kins7nan  v.  Birdsall,  2  E.  D.  Smith,  395  ;  Bank  of  Troy 
V.  Topping,  13  Wend.  557,  569  ;  Towns  end  v.  Derby,  3  Mete. 
363  ;  Hubhle  v.  Fogartie,  3  Rich.  413  ;  Benjamin  v.  Fillman,  2 
McLean,  213  ;  Kendall  v.  Galmn,  15  Me.  131  ;  Watson  v.  Kight- 
ley,  11  Ad.  &  Ell.  702.  The  words  "for  value  received"  in  a 
chattel  note  payable  in  neat  cattle,  are  prima  facie  sufficient 
evidence  of  consideration,  and  on  proof  of  the  execution  and 
delivery  of  the  note,  the  payee  is  entitled  to  recover.  Jerome  v. 
Whitney,  7  Johns.  321 ;   Walrad  v.  Petrie,  4  Wend.  675. 

Every  note,  within  the  statute,  imports  a  consideration,  unless 
the  contrary  appears  in  the  note  itself;  and  if  the  defendant 
would  impeach  the  note  for  want  of  consideration,  the  burden 
of  proof  is  on  him.  Goshen  Turnpilce  Co.  v.  Hurtin,  9  Johns. 
217  ;  Smith  v.  Poor,  37  Me.  462  ;  Coburn  v.  Odell,  30  N.  H.  540 ; 
Camp  V.  Tompkins,  9  Conn.  545  ;  MidUlebury  v.  Case,  6  Vt.  165; 
Tfiompson  v,  Armstrong,  5  Ala.  383  ;  Mitchell  v.  Pome  Railroad 
Co.,  17  Ga.  574  ;  Richardson  v.  Comstock,  21  Ark.  69  ;  Gamwell 
V.  Moseley,  11  Gray,  173  ;  Hatch  v.  Trayes,  11  Ad.  &  Ell.  702. 

The  words  "for  value  received"  when  inserted  in  a  bill  or 
note  are  evidence  of  money  received,  and  the  note  is  admissible 
in  evidence  under  the  money  counts.  Hughes  v.  Wheeler,  8  Cow. 
77.  But  the  recital  in  a  bill,  of  value  received,  and  its  indorse- 
ment, do  not  estop  the  acceptor  nor  the  indorser  from  proving 
that  the  acceptance  and  indorsement  were  for  the  accommodation 
of  the  drawer,  and  that  the  bill  had  no  inception  until  its  usuri- 
ous discount  by  the  plaintiffs.  Clark  v.  Sisson,  22  JST.  Y.  (8 
Smith)  312.  Where  a  note  is  expressed  to  be  for  value  received, 
that  raises  a  presumption  of  a  legal  consideration  sufficient  to 
sustain  the  promise  ;  but  that  is  a  presumption  only,  and  may 
be  rebutted.  Holliday  v.  Atkinson,  5  Barn.  &  Cress.  501.  The 
subject  of  consideration  will  be  noticed  more  fully  hereafter,  and 
see  ante,  85,  etc. 


664  BILLS  AND  NOTES. 

Bills  of  exchange  usually  contain  words  of  advice,  specifying 
to  what  account  the  amount  directed  to  be  paid  is  to  be  charged. 
And  when  a  statement  is  made  in  a  bill  of  a  particular  fund,  out 
of  which  the  drawee  may  re-imburse  himself;  or  if  it  is  directed 
that  the  amount  of  the  bill  shall  be  cliarged  to  a  particular 
account,  this  will  not  invalidate  the  bill.  Kelley  v.  Mayor  of 
BrooUyn,  4  Hill,  263  ;  Bull  v.  Sims,  23  N.  Y.  (9  Smith)  670. 

The  drawer  sometimes  gives  the  drawee  a  general  direction  in 
words  like  the  following  :  "  and  charge  the  same  to  my  account," 
or  directs  it  to  be  put  to  some  specific  account, , as  "to  the  Bed- 
ford road  assessment."  lb.  But  such  words  of  advice  are  not 
necessary  to  the  validity  of  the  bill ;  and  in  th©  absence  of  them, 
the  drawee  has  an  election  as  to  what  account  they  shall  be 
applied,  if  there  are  several  to  which  an  application  may  be  prop- 
erly made.  Laing  v.  Barclay,  1  Barn.  &  Cress.  398.  Such 
words  are  sometimes  considered  in  determining  the  construction 
which  ought  to  be  given  to  the  instrument,  because  they  indicate 
the  intention,  and  frequently  serve  to  explain  the  relation  which 
exists  between  the  parties,  by  pointing  out  the  consideration  for 
which  they  are  given,  or  the  credit  upon  which  they  are  drawn, 
lb.  If  a  bill  contains  a  direction  to  charge  "as  per  advice,"  the 
drawee  has  a  right  to  wait  for  advice  before  accepting  or  paying 
it.  If  no  such  words  are  used,  or  if  the  direction  is  to  charge  as 
already  advised,  or  without  further  advice,  there  is  neither  neces- 
sity nor  propriety  in  waiting  for  letters  of  advice.  It  is,  however, 
customary  to  send  the  drawee  a  letter  advising  him  of  the  draft, 
and  describing  the  bill  in  a  particular  manner  ;  and  this  is  a  pru- 
dent course  in  order  to  prevent  frauds,  and  to  give  the  drawee 
such  information  as  may  satisfy  him  that  the  bill  is  drawn  in  the 
usual  course  of  business. 

A  bill  of  exchange,  being  an  open  letter  of  request  for  the  pay- 
ment of  money,  must  be  regularly  addressed  to  the  person  upon 
whom  it  is  drawn  ;  and  this  is  usually  done  at  the  bottom,  on 
the  left  hand  of  the  bill.  No  one  can  be  liable  as  acceptor  but 
the  person  to  whom  the  bill  is  addressed,  unless  he  be  an  accep- 
tor for  honor.  PolMll  v.  Walter,  3  Barn.  &  Ad.  114,  122; 
Nichols  V.  Diamond,  9  Exch.  157 ;  see  Lindus  v.  Bradwell,  6 
C.  B.  583.  And  where  a  bill  was  drawn  payable  to  the  order  of 
the  drawer  himself,  and  directed  to  himself, '  but  accepted  by 
another  person,  it  was  held  that  no  action  could  be  maintained 
against  such  acceptor.  Davis  v.  Clarice,  6  Ad.  &  Ell.  (N.  S.)  16. 
But  where  an  instrument  was  drawn,  payable  to  the  drawer  or 


BILLS  AND  NOTES.  565 

his  order,  at  a  particular  place,  without  being  addressed  to  any 
person  by  name,  and  it  was  afterward  accepted  by  the  person 
residing  at  the  place  where  it  was  made  payable,  it  was  held  that 
the  acceptor  was  liable  in  an  action  upon  such  instrument  as  a 
bill  of  exchange,  (h'ay  v.  Milner^  8  Taunt.  739.  The  bill  was 
made  "payable  at  No.  1  Wilmot  street,  opposite  the  Lamb, 
Bethnal  Green,  London."  The  court  held  that  since  the  bill  was 
directed  to  a  particular  place,  it  could  not  mean  any  thing  except 
that  the  person  residing  there  was  to  accept  it ;  and  that  by 
accepting  it,  such  person  acknowledged  that  he  was  the  person 
to  whom  it  was  directed.  But  see  Dams  v.  Clarke^  6  Q.  B.  16  ; 
Feto  V.  Reynolds^  9  Exch.  410. 

An  order  drawn  by  the  president  of  a  corporation,  or  by  the 
mayor  of  a  city  upon  its  treasurer,  has  been  held  to  be  a  valid 
bill  of  exchange,  and  is  properly  directed  to  the  treasurer.  Kel- 
ley  V.  Mayor,  etc.,  Brooklyn,  4  Hill,  263.  Or  it  may  be  treated 
as  a  promissory  note  under  the  statute.  Bull  v.  Sims,  23  N.  Y. 
(9  Smith)  570.  And  it  has  been  recently  held  by  the  court  of 
appeals,  that  such  an  order  is  not  a  bill  of  exchange  but  a 
promissory  note.  FaircMld  v.  Ogdenshurgh,  etc.,  R.  R.,  15  N. 
Y.  (1  Smith)  337.  Where  an  instrument  is  made  in  terms  so 
ambiguous  as  to  make  it  doubtful  whether  it  is  a  bill  of  exchange 
or  a  promissory  note,  the  holder  may,  at  his  election,  treat  it  as 
either  as  against  the  maker  of  the  instrument.  Edis  v.  Bury,  6 
Barn.  &  Cress.  433  ;  Brazelton  v.  McMurray,  44  Ala.  323.  The 
construction  which  is  to  be  given  to  bills  and  notes  is  similar  to 
that  which  obtains  with  reference  to  other  contracts.  Bills  and 
notes  payable  to  "  order"  are  transferable  by  indorsement,  while 
those  payable  to  "  bearer  "  may  be  transferred  by  mere  delivery. 
A  bill  of  exchange  or  a  promissory  note  has  no  legal  inception, 
however  complete  it  may  be  in  form,  until  it  is  delivered  to  some 
person,  as  evidence  of  a  subsisting  debt.  Adams  v.  Jones,  12 
Ad.  &  Ell.  455 ;  Machell  v.  Kinnear,  1  Stark.  499 ;  Gatlin  v. 
Gunter,  11  N.  Y.  (1  Kern.)  368  ;  Marmn  v.  McCullum,  20  Johns. 
288  ;  Burson  v.  Huntington,  21  Mich.  415  ;  Ayres  v.  Milroy,  53 
Mo.  516.  A  note  delivered  in  escrow,  to  take  effect  upon  a  con- 
dition, takes  effect  as  soon  as  the  condition  is  performed.  Tay- 
lor V.  Tliomas,  13  Kans.  217.  But  the  note  cannot  be  delivered 
to  the  payee  as  an  escrow,  it  must  be  a  third  person.  HinsJiaw 
V.  Button,  59  Mo.  139. 

When  a  bill  or  note  is  made  and  delivered  for  a  legal  purpose 


666  BILLS  AND  NOTES. 

to  some  person  as  evidence  of  an  existing  indebtedness,  it  then 
has  its  inception,  if  such  delivery  is  absolute. 

There  may  be,  however,  a  conditional  delivery  of  such  an 
instrument,  and  in  a  proper  case  the  courts  will  enforce  the  con- 
dition. And  where  notes  are  signed  by  two  persons,  one  of  them 
a  principal  debtor,  and  the  other  his  surety,  a  declaration  by  the 
principal,  at  the  time  of  the  delivery,  that  such  delivery  is  uncon- 
ditional, will  not  entitle  the  payee  to  maintain  an  action  against 
the  surety  or  indorser  of  the  notes.  If  it  appears  that  the  notes 
were  signed  by  the  maker,  together  with  a  surety,  and  indorsed 
by  another  person  on  the  express  condition  that  they  were  not  to 
take  eflfect  until  a  certain  arrangement  should  be  consummated, 
the  absolute  delivery  of  the  notes  by  the  maker  is  an  unlawful 
diversion  of  them  from  the  purpose  for  which  they  were  made 
and  indorsed  ;  and  the  payee  will  obtain  no  title, to  them  unless 
he  is  a  hona  fide  purchaser  without  notice,  and  for  value  paid. 
Mickles  v.  Colmn^  4  Barb.  304.  So,  in  an  action  by  the  payee  of 
a  check  against  the  drawers,  the  defendants  may  show  the  trans- 
action in  which  it  originated :  that  its  delivery  was  not  absolute 
but  conditional,  and  that,  according  to  such  condition,  it  was  the 
plaintiffs  duty  to  return  it  to  the  defendants,  and  that  they  had 
refused,  before  suit  brought,  to  do  so.  Bernhard  v.  Brunner, 
4  Bosw.  528. 

Where  a  person  is  induced  to  execute  negotiable  paper  by  a 
fraud  practiced  upon  him,  there  cannot  be  a  recovery  upon  it, 
except  by  a  bona  fide  purchaser  for  value.  Farrington  v. 
Frankfort  Bank^  24  Barb.  554.  A  party  who  is  induced  by 
fraud  to  sign  a  note,  or  to  accept  a  bill  upon  the  supposition  that 
it  is  an  entirely  different  contract,  is  not  bound  by  such  signa- 
ture. Foster  v.  Mackinnon,  L.  R.,  4  C.  P.  704  ;  Whitney  v.  Sny- 
der^ 2  Lans.  477.  A  person  who  signs  a  note  in  the  belief  that  it 
is  a  contract  for  service,  and  who  exercises  reasonable  precaution 
and  prudence  to  avoid  fraud  and  imposition,  is  not  liable  on  the 
note.  Taylor  v.  AtcJiison,  54  111.  196  ;  5  Am.  Rep.  118.  So  of  a 
note  signed  in  the  belief  that  it  related  to  an  agency  for  the  sale 
of  a  hay-fork.  Oibbs  v.  Linahury,  22  Mich  479  ;  7  Am.  Rep. 
675,  685,  note.  •  See  Walker  v.  Egbert,  29  Wis.  194  ;  9  Am.  Rep. 
548,  554  note  ;  Briggs  v.  Ewart,  51  Mo.  245  ;  11  Am.  Rep.  445, 
449,  note.  If  his  own  negligence  contributed  to  the  result,  and 
the  bill  or  note  is  held  by  a  bona  fide  holder,  for  value,  he  may 
recover  on  the  instrument.     Chapman  v.  Hose,  56  N.   Y.  (11 


BILLS  AND  NOTES.  567 

Sick.)  137  ;  47  How.  13;  Fenton  v.  Robinson,  4  Hun,  252  ;  6  S. 
C.  (T.  &  C.)  427. 

One  who  becomes  surety  on  a  non-negotiable  note  on  the  ex- 
press condition  that  another  person  shall  be  procured  as  a  co- 
surety, and  the  latter  fails  to  join,  the  surety  will  not  be  liable, 
although  the  ftote  is  in  the  hands  of  a  holder  having  no  notice  of 
the  agreement.  Ayres  v.  Wilson,  53  Mo.  516.  See  also  People 
V.  BostwicTc,  32  N.  Y.  (5  Tiff.)  445  ;  43  Barb.  9 ;  Lovett  v.  Adams, 
3  Wend.  380. 

It  is  of  no  consequence  when  or  where  a  bill  or  note  is  signed, 
because  it  takes  effect  from  the  time  of  delivery,  and  not  from 
the  time  of  making.  Hyde  v.  Ooodnow,  3  N.  Y.  (3  Comst.)  266 ; 
Hall  V.  Wilson,  16  Barb.  548.  Though  the  parties  may  in  some 
cases  deliver  a  note  after  the  time  of  its  date,  and  by  agreement 
make  it  relate  back  to  the  time  of  its  date  for  some  purposes. 
But  no  agreement  can  give  the  note  an  inception  ;  there  must  be 
some  delivery  of  the  instrument,  actual  or  constructive,  before  it 
is  an  absolute  security  as  a  bill  or  note. 

It  is  not  necessary  that  there  should  be  positive  proof  of  a 
delivery,  because  the  law  will  infer  a  delivery  from  given  facts, 
and  those  facts  may  be  established  by  evidence,  and  be  found  by 
a  jury,  or  by  the  justice. 

In  an  action  upon  a  negotiable  promissory  note,  payable  to 
bearer,  or  indorsed  in  blank  by  the  payee,  possession  by  the 
plaintiff  is  prima  facie  evidence  that  he  is  the  owner  of  it  for  a 
good  consideration.  James  v.  Chalmers,  6  N.  Y.  (2  Seld.)  209  ; 
S.  C,  5  Sandf.  52 ;  Seeley  v.  Engell,  17  Barb.  530 ;  Smith  v. 
Schanck,  18  id.  344 ;  Nelson  v.  Cowing,  6  Hill,  336  ;  Bedell 
V.  Carll,  33  N.  Y.  (6  Tiff.)  581.  The  same  rule  applies  to  checks. 
Townsend  v.  Billinge,  1  Hilt.  353  ;  Cruger  v.  Armstrong,  3 
Johns.  Gas.  5,  and  cases  in  note  at  end  of  case  ;  Conroy  v.  War- 
ren, id.  259  ;  and  bills  of  exchange  stand  upon  the  same  footing. 
So  of  railroad  bonds.  Wickes  v.  Adirondack  Co.,  2  Hun,  112 ;  4 
S.  C.  (T.  &  C.)  250.  Indeed,  it  may  be  considered  clearly  settled, 
that  the  actual  possession  of  any  negotiable  instrument  which 
appears  on  its  face  to  have  been  regularly  negotiated,  is  sufficient 
2)rima  facie  evidence  that  the  instrument  was  duly  delivered, 
and  that  the  possessor  is  its  owner  in  good  faith  and  for  value. 
It  is  now  settled  that  the  legal  presumption  is  that  such  instru- 
ment was  delivered  and  negotiated  to  the  holder  before  its  matu- 
rity. Andrews  v.  Ghadbourne,  19  Barb.  147 ;  Pratt  v.  Adams, 
7  Paige,  616.    And  evidence  that  the  bill  or  note  was  not  trans- 


668  BILLS  AND  NOT^S. 

ferred  to  the  plaintiff  until  after  the  maturity  of  the  paper,  does 
not  rebut  the  presumption  that  he  is  a  holder  in  good  faith,  and 
for  value.  James  v.  Chalmers,  6  N.  Y.  (2  Seld.)  209 ;  Seely  v. 
Engell,  Yi  Barb.  530,  634  ;  Smith  v.  Schanck,  18  id.  344. 

Bills  and  notes  are  frequently  given  on  the  sale  of  property 
and  the  settlement  of  accounts,  etc.  And  it  is  a  general  rule  that 
the  giving  of  a  note  or  bill  by  the  debtor  to  his  creditor  for  goods 
sold,  or  for  an  existing  debt,  is  not  to  be  regarded  as  a  payment 
of  the  indebtedness,  unless  there  is  an  express  agreement  that  it 
shall  have  that  effect.  Hill  v.  Beehe,  13  N.  Y.  (3  Kern.)  656, 
662,  663,  and  cases  cited  ;  Hughes  v.  Wheeler,  8  Cow.  77 ;  Bur- 
dicTc  V.  Green,  15  Johns.  247 ;  Tobey  v.  Barber,  6  id.  68. 
This  last  case  is  a  leading  one.  See  2  Am.  Lead.  Cases,  245,  249, 
and  cases.  The  giving  of  a  bill  or  note  does  not  extinguish  the 
debt  for  which  it  was  given ;  it  merely  operates  to  extend  the 
time  of  payment  until  the  instrument  becomes  due  ;  and,  if  it  is 
not  then  paid,  the  creditor  may  sue  upon  the  original  demand, 
though  he  must  be  able  to  produce  the  bill  or  note  at  the  trial 
for  cancellation.  Id.;  Muldon  v.  Whitlock,  1  Cow.  290.  The 
acceptance  by  a  creditor  of  a  bill  or  note  made  by  a  third  person, 
on  account  of  the  debt,  does  not  satisfy  it  unless  the  parties 
agreed  that  it  should  be  received  as  payment.  Noel  v.  Murray, 
13  N.  Y.  (3  Kern.)  167  ;  Hays  v.  Stone,  7  Hill,  128  ;  S.  C,  3  Denio, 
575 ;  Bill  v.  Porter,  9  Conn.  28 ;  Kelsey  v.  Eoshorough,  2 
Rich.  241 ;  Oordon  v.  Price,  10  Ired.  385  ;  Smith  v.  Smith,  27 
N.  H.  244 ;  Howard  v.  Joues,  33  Mo.  583  ;  Devlin  v.  Chamhlin, 
6  Minn.  468 ;  Morrison  v.  Welty,  1 8  Md.  169  ;  McCrary  v.  Car- 
rington,  35  Ala.  698 ;  Blunt  v.  Walker,  11  Wis.  334 ;  Jose  v. 
Baker,  37  Me.  465  ;  Caldwell  v.  Fijield,  4  Zabr.  150 ;  Bassett  v.- 
Sanborn,  9  Cush.  57.  The  same  rule  applies  to  a  check,  and  if 
it  is  not  paid,  the  creditor  may  sue  upon  the  original  demand. 
Cromwell  v.  Lovett,  1  Hall,  5Q ;  Stevens  v.  McNeill,  26  Barb. . 
651 ;  Tanner  v.  Bank  of  Fox  Lake,  23  How.  399 ;  Mclntyre  v. 
Kennedy,  29  Penn.  St.  448.  Where  a  note,  bill  or  check  is  re- 
ceived on  a  precedent  debt,  the  presumption  is  that  it  was  not 
taken  as  payment,  and  the  burden  of  establishing  that  it  was 
agreed  to  be  so  received  is  upon  the  debtor.  Noel  v.  Murray, 
13  N.  Y.  (3  Kern.)  168.  But  where  such  an  instrument  is 
received  cotemporaneously  with  the  contracting  of  the  debt,  the 
presumption  is  that  it  was  agreed  to  be  received  in  payment,  and 
the  burden  of  proving  the  contrary  rests  on  the  creditor.  Id.; 
Wliitbeck  v.  Van  Ness,  11  Johns.  409  ;  Rew  v.  Barber,  3  Cow. 


BILLS  AND  NOTES.  569 

272  J  Breed  v.  Cook,  15  Johns.  241 ;  Youngs  v.  Siafielin,  34  N. 
Y.  (7  Tiff.)  258;  Randlet  v.  Herren,  20  N.  H.  102.  Where  the 
debtor  guarantees  a  bill,  or  note  or  check,  which  he  transfers  as 
part  payment,  at  the  time  of  the  creation  of  the  debt,  such  guar- 
anty is  evidence  that  the  creditor  did  not  accept  the  instrument 
in  payment.  Monroe  v.  Hoff,  5  Denio,  860 ;  Johnson  v.  Oilhert, 
4  Hill,  178 ;  Torry  v.  Hadley,  27  Barb.  192 ;  Tyler  v.  Stevens, 
11  id.  485 ;  Vardell  v.  McNiel,  21  N.  Y.  (7  Smith)  336.  It  is 
of  no  Qonsequence  whether  the  guaranty  is  in  writing  or  by  parol, 
or  whether  it  is  valid  or  void.  In  either  case  it  is  evidence  that 
the  creditor  did  not  accept  the  instrument  as  an  absolute  payment 
of  his  demand  ;  and,  therefore,  when  the  time  expires  for  which 
such  instrument  extends,  and  it  then  is  unpaid,  the  creditor  may 
sue  upon  the  original  debt,  and  cancel  such  collateral  security 
on  the  trial.  lb.  Where  the  creditor  accepts  the  note  of  a  third 
person  in  payment  of  his  debt,  whether  existing,  or  one  created 
at  the  time  of  a  purchase,  etc.,  such  note  will  be  a  payment  and 
discharge  of  the  debt ;  or,  if  it  was  expressly  agreed  that  such 
should  be  the  effect  of  the  arrangement.  Johnson  v.  Weed,  9 
Johns.  310 ;  Graves  v.  Friend,  5  Sandf.  568  ;  St.  John  v.  Purdy, 
1  id.  9 ;  Frishie  v.  Lamed,  21  Wend.  450 ;  Willard  v.  Germer, 
1  Sandf.  50 ;  New  York  State  Bank  v.  Fletcher,  5  Wend.  85 ; 
AbercromMe  v.  Manly,  9  Port.  (Ala.)  145  ;  Slocumh  v.  Holmes,  1 
How.  (Miss.)  139 ;  Cave  v.  Hall,  5  Mo.  59 ;  Watson  v.  Owens,  1 
Rich.  Ill ;  Mims  v.  McDowell,  3  Ga.  182  ;  and  see  Tohey  v.  Bar- 
ber, 5  Johns.  68  ;  S.  C,  2  Am.  Lead.  Cases. 

Though  the  delivery  of  the  note  of  a  third  person  is  not  a 
payment  of  a  precedent  debt,  and  merely  operates  to  suspend 
the  remedy  upon  the  original  debt,  yet,  if  the  holder  is  guilty 
of  laches,  he  makes  the  note  his  own,  and  discharges  the  pre- 
cedent debt.  Shipman  v.  Cook,  1  Green,  251 ;  Allen  v.  Clark,  65 
Barb.  563 ;  Smith  v.  Miller,  43  N.  Y.  (4  Hand)  171 ;  52  N.  Y.  (7 
Sick.)  545 ;  Middlesex  v.  Thomas,  20  N.  J.  39 ;  Kephart  v. 
Butcher,  17  Iowa,  240  ;  Lean  v.  Friedlander,  45  Miss.  559.  See 
Syracuse,  etc.,  R.  R.  Co.  v.  Collins,  57  N.  Y.  (12  Sick.)  641 ;  3 
Lans.  29. 

Where  several  persons  are  jointly  indebted  for  goods  sold, 
which  are  charged  to  all  the  debtors,  it  will  not  discharge  some 
of  the  parties  from  their  liability  by  reason  of  the  making  out 
of  a  bill  against  a  part  of  the  debtors,  and  taking  a  note  from 
them  payable  at  a  future  time,  and  giving  a  receipt  in  full,  if 
Buch  note  is  not    paid.      Muldon   v.    Whitlock,    1    Cow.  290; 

Vol.  L  — 72 


670  BILLS  AND  NOTES. 

ScJiermerhorn  v.  Loines,  7  Johns.  311.  Where  a  firm  was 
indebted,  and  had  given  a  firm  note  for  the  amount,  and  the 
firm  was  subsequently  dissolved,  and  after  that  event  one  of  the 
partners  gave  his  individual  note  for  a  part  of  the  amount, 
the  note  of  a  third  person  for  a  portion  of  it,  and  paid  the  bal- 
ance in  money,  it  was  held  that  this  arrangement  extinguished 
the  liability  of  the  other  partners.  Waydell  v.  Luer,  3  Denio, 
410 ;  and  see  Le  Page  v.  McCrea,  1  Wend.  164 ;  FrisMe  v. 
Larned^  21  id.  450.  Whether  a  note  given  by  one  of  several 
partners,  upon  an  express  agreement  that  it  shall  be  received  in 
payment  of  the  firm  debt,  will  discharge  the  other  partners,  is 
not  entirely  settled.  See  Edw.  on  Bills,  194, 195,  and  cases  cited. 
Where  a  creditor  received  from  his  debtor  the  business  note  of  a 
third  person,  upon  an  agreement  that  it  should  be  a  full  satis- 
faction of  a  larger  debt,  if  paid  at  maturity,  but  not  otherwise, 
it  was  held  that  the  creditor,  by  receiving  payment  of  the  note 
when  past  due,  waived  the  condition  and  discharged  his  original 
debtor.     ConUing  v.  King,  10  N.  Y.  (6  Seld.)  440. 

The  discounting  of  a  new  note,  and  the  application  of  the 
proceeds  realized  from  it  to  the  payment  of  the  foimer  note, 
extinguishes  the  old  debt  and  creates  a  new  one.  Fisher  v. 
Marmn,  47  Barb.  159. 

When  a  negotiable  bill  or  note  is  delivered  to  a  creditor,  it 
operates  as  a  payment  so  far  that  he  cannot  recover  upon  the 
original  demand  until  such  instrument  is  due,  and  he  must  then 
produce  and  cancel  it  at  the  trial  before  he  can  recover.  Holmes 
V.  DeCamp,  1  Johns.  34 ;  Angel  v.  Felton,  8  id.  149  ;  Raymond 
V.  Merchant,  3  Cow.  147 ;  Hughes  v.  Wheeler,  8  id.  77 ;  Burdick  v. 
Green,  15  Johns.  247 ;  Miller  v.  Lumsden,  16  111.  161 ;  Matthews 
V.  Dare,  20  Md.  248.  Negotiable  paper  is  treated  as  payment  in 
the  manner  just  mentioned,  for  the  reason  that  it  may  be  trans- 
ferred from  hand  to  hand ;  and  if  transferred  to  a  bona  fide 
holder,  for  value,  before  the  maturity  of  the  paper,  the  maker 
will  be  liable  to  pay  the  amount  to  such  holder  ;  and  it  is  there- 
fore required  that  the  creditor  who  took  it  from  the  debtor  shall 
produce  and  cancel  it  at  the  trial,  or  show  its  loss,  etc.,  before  he 
can  recover,  either  upon  the  original  demand  or  even  upon  the 
note  itself.  lb.  See  "Lost  Note."  When  a  bill  or  note  which 
is  not  negotiable  is  given  by  a  debtor  to  his  creditor,  the  debtor 
ought  to  have  the  same  right  to  require  the  production  and  can- 
cellation of  the  note.  The  Code  permits  an  assignment  of  such 
instruments,  and  authorizes  the  owner  of  the  demand  to  sue  in 


BILLS  AND  NOTES.  571 

his  own  name  (Code,  §§  111,  112,  113),  and  it  provides  that 
actions  by  assignees  shall  be  without  prejudice  to  any  set-off  or 
other  defense  existing  at  the  time  of,  or  before  notice  of,  the 
assignment.  §  112. 

Where  an  action  is  brought  by  an  assignee  in  his  own  name, 
upon  a  chose  in  action  not  negotiable,  the  defendant  owing  such 
claim  cannot  set  off  a  demand  in  his  favor,  against  the  plaintiff, 
as  a  defense,  unless  he  proves  that  the  claim  belonged  to  him 
before  notice  of  the  assignment.  Soloman  v.  Holt,  3  E,  D. 
Smith,  139. 

When  a  creditor  accepts  a  bill  or  note  from  his  debtor  it  will 
operate  to  suspend  the  right  of  action  on  the  original  debt  until 
the  bill  or  note  becomes  due  or  is  dishonored.  Putnam  v.  Lewis, 
8  Johns.  389 ;  Herring  v.  Sawyer,  cited  in  same  case  ;  Smith  v. 
Applegate,  1  Daly,  91. 

Where  goods  are  sold  which  are  to  be  paid  for  by  the  note  of 
a  third  person,  upon  the  delivery  of  the  goods,  and  such  tliu'd 
person  becomes  insolvent  before  the  goods  are  delivered,  the 
vendor  is  not  compelled  to  deliver  them  and  take  such  notes  in 
payment,  even  though  the  notes  are  not  entirely  worthless. 
Benedict  v.  Field,  16  N.  Y.  (2  Smith)  695 ;  S.  C,  4  Duer,  154; 
Roget  V.  Merritt,  2  Caines,  117.  But  see  Sigler  v.  Smith,  4  E. 
D.  Smith,  280,  which  holds  that  if  the  vendor  expressly  agrees 
to  receive  the  note  of  such  third  person,  without  recourse  to  the 
purchaser,  he  will  be  bound  by  the  agreement,  even  though  the 
maker  of  the  note  becomes  insolvent  before  the  notes  are 
delivered. 

Where  goods  are  sold  and  the  purchaser  pays  for  them  by 
giving  the  note  of  a  third  person  which  is  indorsed  by  the  pur- 
chaser, such  note  will  prevent  a  recovery  for  the  goods  on  a  claim 
for  goods  sold  ;  and  if  the  creditor  neglects  to  take  proper  steps 
for  collecting  the  note,  and  he  omits  to  give  the  purchaser 
notice  of  non-payment,  the  purchaser  will  be  discharged.  Day- 
ton V.  Trull,  20  Wend.  345.  So,  when  a  bill  of  exchange  is 
given  in  payment  for  goods  purchased,  the  vendor  must  take 
proper  steps  to  present  the  bill  for  acceptance,  and  take  proper 
steps  to  charge  the  drawer,  or  he  will  be  discharged,  and  the 
creditor  will  be  compelled  to  rely  on  the  bill  as  a  means  of  pay- 
ment. Jones  V.  Savage,  6  Wend.  658  ;  Chamberlyn  v.  Delarite^ 
2  Wils.  350 ;  Smith  v.  Wilson,  Andrews,  187,  228.  The  accept- 
ance of  a  note  in  payment  of  a  prior  debt  will  not  operate  as  a 
suspension  of  the  creditor's  right  of  action,  if  the  debtor  neg- 


672  BILLS  AND  NOTES. 

lects  or  refuses  to  perform  all  that  lie  engaged  to  do.  And, 
tlierefore,  where  an  action  had  been  commenced  in  the  Supreme 
Court  on  a  book  account,  and  an  agreement  was  made  between 
the  parties  for  a  settlement,  on  condition  that  the  defendant  gave 
his  note  to  the  plaintiff  for  the  amount,  and  paid  the  costs  of 
the  suit,  and  the  defendant  gave  the  note  but  neglected  to  pay 
the  costs,  it  was  held  that  the  plaintiff  had  a  right  to  proceed  in 
the  action.  Putnam  v.  Lewis,  8  Johns.  389.  When  a  creditor  re- 
ceives an  order  or  draft  from  his  debtor  upon  a  third  person,  for  a 
given  sum,  which  the  debtor  alleges  is  to  be  due  in  a  few  days, 
and  the  creditor  takes  the  notes  of  such  third  person,  payable 
in  six  and  nine  months,  he  makes  the  debt  his  own,  and,  in  case 
of  non-payment  of  the  notes,  he  cannot  call  upon  the  debtor  for 
the  amount  of  the  draft.     Southwick  v.  Sax,  9  Wend.  122. 

Where  a  debtor  gives  his  own  note  for  money  which  he  has 
borrowed,  and  he  also  delivers  to  his  creditor  the  note  of  a  third 
person  as  a  collateral  security,  the  creditor  will  have  no  right  to 
take  a  new  note  of  such  third  person,  and  extend  the  time  of  pay- 
ment, and  if  he  takes  such  new  note  he  releases  his  debtor  from 
the  payment  of  his  note,  if  the  note  of  such  third  person  was 
equal  to  the  amount  of  the  loan.     Nexsen  v.  Lyell,  5  Hill,  406. 

Where  the  note  of  a  third  person  is  delivered  on  a  debt  due, 
and  is  received  as  a  conditional  payment,  if  the  creditor  uses 
diligence  in  demanding  payment  of  the  note  at  maturity,  and  in 
giving  notice  of  the  non-payment  so  as  to  charge  the  indorsers 
thereon,  the  liability  on  the  original  consideration  revives,  and 
the  creditor  may  bring  his  action  upon  the  original  demand. 
HiGkling  v.  Hardey,  7  Taunt.  312  ;  Mussen  v.  Price,  4  East,  147. 
One  who  receives  a  note  as  a  collateral  security  is  bound  to  use 
ordinary  diligence  in  its  collection.  Roberts  v.  Tfiompson,  14 
Ohio  St.  1. 

In  strictness  the  debt  does  not  revive,  for  it  was  not  extin- 
guished. The  dishonor  of  the  paper  merely  gives  a  right  of 
action,  which  was  temporarily  suspended  during  the  time  such 
paper  was  maturing.     Puckford  v.  Maxwell,  6  Term,  52. 

Forged  negotiable  paper,  whether  bills  and  notes,  or  bank  notes 
and  bills,  are  no  payment,  and  it  will  not  make  any  difference  to 
the  rule,  to  show  that  the  person  paying  such  bills  supposed  that 
they  were  genuine.  Markle  v.  Hartjield,  2  Johns.  455  ;  Thomas 
v.  Todd,  6  Hill,.  340;  Baker  v.  Bonesteel,  2  Hilt.  397;  Jones  v. 
Ryde,  5  Taunt.  488.  The  party  receiving  such  a  bill  must  return 
it  to  the  person  of  whom  he  received  it,  within  a  reasonable  time 


BILLS  AND  NOTES.  573 

after  discovering  its  worthlessness,  or  he  will  have  to  bear  the  loss. 
lb. ;  Kenny  v.  First  National  Bank  of  Albany^  50  Barb.  112. 
See  Burrill  v.  Watertown  Bank  and  Loan  Co.,  51  id.  105.  So, 
where  bank  bills  are  received  in  payment,  and  at  the  time  of 
such  payment  the  bank  which  issued  the  bills  has  in  fact  stopped 
payment  and  is  insolvent,  although  the  failure  is  not  known  at 
the  place  of  payment,  the  loss  falls  upon  the  party  paying,  and 
not  upon  the  party  receiving  the  bills.  LigMbody  v.  Ontario 
Bank,  11  Wend.  9 ;  S.  C,  13  id.  101 ;  Townsend  v.  Bank  of 
Racine,  7  Wis.  185 ;  Westfall  v.  Braley,  10  Ohio  St.  158  ;  Harley 
V.  Thornton,  2  Hill  (S.  C),  509,  note;  -Fogg  v.  Sawyer,  9  N.  H. 
365.  But  it  has  also  been  held  that  the  loss  falls  on  the  party 
receiving  the  bills  when  neither  of  the  parties  knew  that  the  bank 
had  failed.  Bayard  v.  Shunk,  1  Watts  &  Serg.  92  ;  Young  v. 
Adams,  6  Mass.  182, 185  ;  Scruggs  v.  Gass,  8  Yerg.  115  ;  Lowry 
V.  Murrell,  2  Port.  282  ;  Ware  v.  Street,  2  Head,  609.  The  rule 
as  to  returning  such  bills  is  the  same  as  that  in  relation  to  forged 
paper.  Camidge  v.  Allenhy,  6  Barn.  &  Cress.  373  ;  Raymond  v. 
Baar,  13  Serg.  &  R.  318.  The  object  in  requiring  a  prompt  return 
of  such  paper  is,  to  enable  each  person  to  act  without  delay  in 
returning  it  to  the  person  from  whom  he  received  it,  and  while 
his  memory  is  fresh  in  relation  to  the  transaction. 

ARTICLE  V. 

BILLS  AND  NOTES  NOT  NEGOTIABLE. 

Section  1.  In  general.  Bills  of  exchange  are  negotiable  by  the 
law  merchant  without  the  aid  of  any  statute.  And  these  instru- 
ments were  in  common  use  as  negotiable  instruments  long  before 
promissory  notes. 

It  is  by  virtue  of  the  statute  that  promissory  notes  are  made 
negotiable  in  the  same  manner  that  bills  of  exchange  are.  Ante, 
544,  §  1. 

No  promissory  note  is  negotiable  unless  it  is  made  so  by  statute. 
We  have  already  seen  what  instruments  are  negotiable  within 
the  statute.  Ante,  544.  Under  the  former  practice,  all  actions  were 
required  to  be  brought  in  the  name  of  the  person  having  the  legal 
interest ;  while  under  the  present  law  it  is  required  that  all  actions 
shall  be  brought  in  the  name  of  the  real  party  in  interest.  But, 
under  the  old  law,  bills  and  notes  were  an  exception  to  the  gen- 
eral rule,  for  any  person  who  held  a  negotiable  bill  or  note  might 
maintain  an  action  upon  it  in  his  own  name.    This  rule,  however. 


574  BILLS  AND  NOTES. 

did  not  extend  to  bills  and  notes  not  negotiable ;  and,  where 
they  were  assigned,  the  action  was  required  to  be  brought  in  the 
name  of  the  assignor,  although  the  suit  was  prosecuted  for  the 
benefit  of  the  assignee,  who  was  the  real  party  in  interest.  The 
Code  has  changed  the  rule,  so  far  as  to  require  all  actions  to  be 
brought  in  the  name  of  the  real  party  in  interest  in  the  subject- 
matter  of  the  action.  This  rule,  of  course,  includes  bills  and 
notes,  as  well  as  other  causes  of  action.  But  the  Code  does  not, 
in  any  manner,  change  the  rule  in  relation  to  what  bills  and  notes 
are  negotiable,  or  as  to  what  are  not  negotiable. 

The  effect  of  the  change  in  the  law  has  been  to  render  choses 
in  action  assignable,  and  to  authorize  an  action  now,  in  the  name 
of  the  assignee,  in  many  cases  in  which  it  could  not  formerly 
have  been  maintained. 

It  is  thus  evident,  that  the  change  in  the  law  which  authorizes 
an  action  in  the  name  of  the  party  to  whom  an  assignable  demand 
has  been  transferred,  is  not,  by  any  means,  equivalent  to  render- 
ing assigned  demands  negotiable  ones.  What  are  the  requisites 
of  negotiable  paper,  has  been  partially  explained.  Ante,  538.  A 
brief  allusion  will  now  be  made  to  those  cases  in  which  it  is 
declared  that  certain  bills  and  notes  are  not  negotiable.  An 
instrument  in  the  form  of  a  negotiable  promissory  note,  which 
has  a  seal  afiixed  to  the  signature  of  the  maker,  is  not  negotia- 
ble. Clark  V.  Farmers'  Manuf.  Co.,  15  Wend.  256.  But  a 
scrawl  with  a  pen,  of  the  letters  L.  S.,  at  the  end  of  the  signa- 
ture, is  not  a  seal  in  this  State.  Warren  v.  Lynch,  5  Johns.  239. 
Though  the  printed  letters  "L.  S."  in  brackets  have  been  held 
to  constitute  a  seal.     Giles  v.  Mauldin,  7  Rich.  (S.  C.)  11. 

A  note  which  is  payable  in  specific  articles  is  not  within  the 
statute,  and  it  is,  therefore,  not  negotiable.  Jerome  v.  Whitney, 
1  Johns.  322.  So  an  order  for  goods,  which  is  drawn  in  the  form 
of  a  bill  of  exchange,  is  not  a  bill  of  exchange,  nor  equivalent 
to  such  an  instrument,  and  it  is  not  negotiable.  Atkinson  v. 
Manks,  1  Cow.  692  ;  Farnum  v.  Virgin,  52  Me.  576 ;  Tibbetts 
V.  Oerrish,  25  N.  H.  41  ;  Oaulden  v.  Sheeker,  24  Ga.  438 ;  Hor- 
ton.Y.  Arnold,  11  Wis.  139;  Gusker  v.  Fddy,  11  Gray,  502; 
Smith  V.  Giegrich,  36  Mo.  369 ;  Arclier  v.  Clajiin,  31  111.  306. 

If  a  note,  payable  in  specific  chattels,  contains  the  words,  "  for 
value  received,"  the  burden  of  proving  a  want  of  consideration 
is  thrown  upon  the  maker,  since  the  law  will  presume  that  there 
was  a  valuable  consideration.  In  negotiable  notes  and  bills, 
value  is  implied  in  every  acceptance  or  indorsement,  but  this 


BILLS  AND  NOTES.  ■      575 

rule  does  not  apply  to  paper  not  negotiable  ;  and,  therefore,  an 
accepted  order,  which  is  payable  in  merchandise,  does  not  import 
a  consideration.     Jeffries  v.  Hager,  18  Mo.  272. 

There  may  be  a  case  in  which  a  note  is  negotiable,  although 
payable  in  chattels.  And  where  a  note  promised  to  pay  a  speci- 
fied sum  of  money,  and  it  also  promised  to  pay  in  goods  on 
demand,  it  was  held  to  be  a  negotiable  note,  because  it  was  not 
optional  with  the  maker  to  pay  in  goods,  although  the  payee  or 
holder  had  such  an  option,  if  he  chose  to  exercise  it.  Hosstatter 
V.   Wilson,  36  Barb.  307. 

Notes  payable  in  chattels  are  as  valid  as  though  they  were 
negotiable.  They  are  a  sort  of  special  contract  which  is  governed 
by  some  rules  of  law  which  do  not  apply  to  negotiable  paper. 
And  when  chattel  notes  are  assigned,  the  assignee  may  enforce 
them  in  the  same  manner  that  his  assignor  might  have  done. 

If  no  consideration  is  expressed  on  the  face  of  such  notes,  it 
will  be  necessary  to  allege  one  in  a  complaint  upon  the  note,  in 
the  same  manner  as  when  declaring  upon  any  other  cause  of 
action  arising  upon  contract.  It  has  been  seen  already,  that  an 
assignee  takes  such  a  note  subject  to  all  equities  existing  against 
it  at  the  time  of  the  transfer,  or  such  other  equities  as  may  arise 
before  notice  of  the  assignment.     Ante,  561. 

Before  noticing  chattel  notes  more  particularly,  it  may  be 
proper  to  say  a  few  words  in  relation  to  instruments  in  the  form 
of  bills  of  exchange,  except  that  they  are  payable  in  chattels. 
Such  instruments  are  usually  called  orders  for  goods. 

Where  an  order  of  this  kind  is  drawn  for  a  given  sum,  payable 
in  goods  or  in  the  proceeds  thereof,  it  is  not  a  bill  of  exchange ; 
and,  if  the  drawee  accepts,  he  is  not  liable  to  the  payee  upon  it, 
unless  he  has  goods,  or  their  avails,  sufficient  to  pay  the  order  ; 
and  the  person,  suing  upon  it  must  allege  and  prove  these  facts 
before  he  can  recover.  Atkinson  v.  Manks,  1  Cow.  692  ;  Jeffries 
v.  Hager,  18  Mo.  272. 

But,  where  a  person  draws  such  a  bill  upon  his  factor,  with 
instructions  to  pay  the  amount  to  the  payee  out  of  the  proceeds 
of  goods  in  his  hands,  after  paying  prior  acceptances,  and  such 
factor  accepts  the  bill  generally,  he  is  liable  to  pay  the  amount 
to  the  payee,  if  such  factor  had  sufficient  funds  for  that  purpose, 
after  paying  the  prior  acceptances,  notwithstanding  the  drawer 
may  have  owed  the  factor  a  sum  larger  than  the  amount  of  the 
bill.  Maber  v.  Massias,  2  W.  Bla.  1072.  By  accepting  the 
instrument  generally,  the  factor  estopped  himself  from  claiming 


576  BILLS  AND  NOTES. 

any  allowance  out  of  tlie  fund  for  himself,  until  the  prior  accept- 
ances, and  the  order  or  bill  accepted  were  paid.  So  where  the 
owner  draws  an  order  upon  a  person  for  a  portion  of  his  property, 
which  is  in  the  hands'  of  his  factor,  or  a  warehousenaan,  or  his 
agent,  and  the  order  is  accepted  in  general  terms,  the  title  to  the 
property  mentioned  in  the  order  passes,  and  the  vendee  is  entitled 
to  the  property.  Oillett  v.  Hill,  2  Cromp.  &  Mees.  530  ;  S.  C . ,  4 
Tyr.  290 ;  CJiapman  v.  Searle,  8  Pick.  38.  An  acceptance  may 
be  absolute,  or  conditional.  When  the  acceptance  is  conditional, 
and  is  not  to  become  absolute  unless  upon  the  happening  of  a 
specified  event,  the  acceptance  is  not  binding,  and  cannot  be 
enforced  until  the  occurrence  of  the  event.  Swan  v.  Cox,  1  Marsh. 
176. 

But,  when  the  event  happens,  the  acceptance  becomes  absolute 
and  binding,  and  it  may  then  be  enforced  if  payment  according 
to  the  order  and  the  acceptance  is  refused.  Julian  v.  Shobroke, 
2  Wils.  9  ;  Smith  v.  Abbot,  2  Strange,  1152. 

Where  the  drawee  of  an  order  for  goods  produces  it  at  the  trial, 
this  is  evidence  of  a  sale  of  goods  by  the  drawee  to  the  drawer, 
and  of  a  delivery  of  them  to  the  payee,  at  the  drawer's  request. 
In  this  respect  they  differ  from  orders  drawn  for  the  payment  of 
money,  which,  if  nothing  appears  to  the  contrary,  are  presumed 
to  be  drawn  upon  funds  of  the  drawer  in  the  hands  of  the  drawee. 
Al'oord  V.  Baker,  9  Wend.  823.  Orders  for  the  delivery  of  goods 
do  not  require  any  acceptance,  and  are  usually  satisfied  by  the 
delivery  of  the  property  on  presentation.  Briggs  v.  Sizer,  80 
N.  Y.  (8  Tiff.)  647.  The  holder  of  such  an  order  may,  however, 
require  its  acceptance  in  writing,  and,  when  required,  the  drawee 
is  bound  so  to  accept.  lb. 

A  landlord,  for  value  received,  gave  an  order  on  his  tenant  to 
pay  W.  the  rents  accruing  during  a  certain  time,  which  the  tenant, 
when  the  order  was  presented,  said  he  would  pay,  and  the  land- 
lord subsequently  notified  the  tenant  not  to  pay,  but  the  latter 
disregarded  the  notice  and  paid  the  order,  and  it  was  held  that 
the  tenant  did  right,  and  that  the  landlord's  claim  for  rent  was 
extinguished.  Morton  v.  Naylor,  1  Hill,  588.  An  order  of  this 
nature  is  an  equitable  assignment  of  the  fund  on  which  it  is 
drawn,  and  the  drawee,  when  notified  of  the  assignment,  must 
pay  accordingly,  although  there  is  no  formal  acceptance  either 
written  or  verbal.  lb.  So,  where  the  owners  of  certain  securities 
assign  them  in  trust  to  discharge  certain  specified  debts,  "the 
balance  to  be  held  subject  to  their  order,"  and  the  assignees 


BILLS  AND  NOTES.  577 

accept  tlie  trust,  and  the  assignors  afterward  give  an  order  on 
them  for  the  balance,  of  which  they  are  properly  notified,  it  is 
held  that  the  payee  of  the  order  may  recover  against  them  to  the 
extent  of  the  balance  in  their  hands,  though  they  have  not  form- 
ally accepted  the  order,  because  the  acceptance  of  the  trust  is  in 
effect  a  promise  to  the  payee  of  the  order.  Westo7i  v.  Barker, 
12  Johns.  276.  But  an  order  drawn  payable  out  of  a  specified 
fund  is  not  an  assignment  pro  tanto  of  the  fund,  unless  a  con- 
sideration was  paid  therefor.  Alger  v.  Scott,  54  N.  Y.  (9  Sick. 
14. 

There  is  one  important  distinction  between  negotiable  bills  of 
exchange,  and  orders  for  the  delivery  of  goods,  when  the  owner 
of  them  draws  an  order  for  their  delivery,  which  is  shown  to  the 
person  who  has  them  in  his  possession.  In  the  former  case  the 
drawee  is  not  liable  before  he  accepts  the  bill,  but  in  the  case  of 
an  order  for  goods,  the  title  to  them  passes  to  the  payee  of  the 
order  whether  the  drawee  accepts  it  or  not.  The  order  operates  as 
a  transfer  of  the  title.  Briggs  v.  Sizer,  30  N.  Y.  (5  Tiff.)  647.  So, 
when  an  order  is  drawn  upon  a  particular  fund,  as  in  the  case 
of  the  rents  just  mentioned,  the  title  is  transferred  by  the  order 
by  way  of  an  assignment,  and  no  acceptance  is  necessary.  But, 
in  all  such  cases,  whether  of  an  order  upon  a  particular  fund  or 
that  of  an  order  for  goods,  the  payee  must  show  that  the  drawer 
had  title  to  the  fund,  or  that  he  owned  the  goods,  unless  the 
drawee  accepts  the  order,  which  is  an  admission  of  the  right  of 
the  drawer  to  the  property  or  the  fund.  Lowery  v.  Steward,  25 
N.  Y.  (11  Smith)  239 ;  Gallagher  v.  Nichols,  6o'n.  Y.  (15  Sick.) 
438  ;  1^  Abb.  (N.  S.)  337. 

Without  such  acceptance  of  proof  of  the  drawer's  title  to  the 
fund  or  goods,  no  action  can  be  maintained  by  the  payee  or  his 
assignee.  It  has  been  seen,  ante,  561,  that  negotiable  promissory 
notes  for  the  payment  of  money  differ  from  chattel  notes  in  rela- 
tion to  negotiability,  and  as  to  the  equities  of  prior  parties  to  the 
paper,  or  prior  holders  of  it.  But  there  are  other  points  in  rela- 
tion to  chattel  notes  which  it  is  important  to  understand  and  to 
observe  in  practice.  It  is  a  general  rule  that  a  party  who  is 
bound  to  render  a  particular  service,  or  to  make  a  payment  in 
money  by  a  given  day,  must  seek  the  party  to  whom  the  duty  or 
the  debt  is  due.  In  relation  to  notes  payable  in  specific  articles, 
the  law  is  well  settled  upon  nearly  all  important  questions.  This 
kind  of  notes  sometimes  raises  questions  as  to  the  time  when  and 
the  place  where  they  are  payable.    They  may,  however,  be  prin- 

VoL.  L— 73 


678  BILLS  AND  NOTES. 

cipally  reduced  to  four  classes :  1.  When  the  note  is  made  by  a 
mechanic,  manufacturer,  merchant  or  producer  of  the  article ; 
2.  When  there  is  no  time  or  place  of  payment  mentioned  in  the 
note,  whether  it  is  made  by  a  mechanic,  etc.,  or  by  any  other 
person  ;  3.  When  the  note  is  payable  on  demand,  but  no  place 
of  payment  is  specified  ;  4.  When  the  note  specifies  both  the 
time  and  place  of  payment. 

First.  When  a  chattel  note  is  made  by  a  mechanic,  manufac- 
turer, merchant  or  producer,  and  the  note  does  not  specify  any 
place  of  payment,  the  general  rule  is,  that  the  payee  of  the  note, 
or  his  assignee,  must  go  to  the  shop  of  the  mechanic,  the  manu- 
factory or  warehouse  of  the  manufacturer,  the  store  of  the  mer- 
chant, or  the  farm  of  the  producer,  and  demand  the  property 
specified  in  the  note.  And  in  such  cases,  until  a  demand  is  made 
at  such  places,  no  breach  of  the  maker's  contract  exists,  and  no 
action  can  be  maintained  against  him.  The  reason  of  this  rule 
is  evident,  and  the  rule  itself  is  a  just  one.  Every  person  who 
manufactures  or  produces  articles  to  sell,  or  who  keeps  them  for 
sale  as  a  business,  is  presumed  to  have  facilities,  at  those  places, 
for  the  delivery  of  the  articles  which  he  makes  or  keeps  for  sale  ; 
and  it  is  also  presumed  that  he  will  always  be  properly  supplied 
with  such  articles  as  he  has  promised  to  deliver,  whenever  they 
are  called  for  at  such  place,  while  he  could  not  be  expected  to  be 
so  supplied  with  the  articles  elsewhere. 

A  merchant  gave  a  due  bill,  payable  to  A  or  order,  for  $2,000, 
payable  in  merchandise  out  of  his  store,  on  demand,  at  a  place 
specified  by  street  and  number,  in  the  city  of  New  York,  and 
the  goods  were  to  be  sold  and  delivered  at  a  price  not  mgre  than 
twenty  five  per  cent  above  the  cost  price.  It  was  held  that  the 
terms  of  the  note  were  complied  with,  by  delivering  goods  at 
prices  twenty-five  per  cent  above  cost  to  the  merchant,  though 
that  price  might  be  much  more  than  twenty-five  per  cent  above 
the  wholesale  market  price,  at  the  time  of  delivering  such  goods ; 
and  also  that  the  merchant  was  at  liberty  to  continue  selling  his 
goods,  without  replenishing  the  stock,  until  demand  for  delivery 
in  full,  for  the  contract;  and  that,  so  long  as  the  merchant 
retained  sufficient  goods  for  that  purpose,  the  other  j)arty  could 
not  complain  that  he  was  left  to  a  selection  from  an  inferior 
assortment,  and  goods  less  marketable  than  the  stock  at  the  date 
of  the  contract ;  and  further,  that  after  a  reasonalSle  notice  by 
the  merchant  to  the  other  party,  to  select  his  goods  at  the  place 
named  in  the  note,  such  party  was  bound  to  accept  them  at  any 


BILLS  AND  NOTES.  579 

other  reasonably  convenient  place  in  the  same  city,  to  which 
they  might  be  removed ;  and  that  a  subsequent  demand,  at  the 
original  place  or  elsewhere,  for  a  delivery  of  the  goods  at  the 
original  place,  was  ineffectual  for  the  purpose  of  rendering 
the  maker  liable  to  pay  in  money.  Buck  v.  Burk^  IS  N.  Y.  (4 
Smith)  337.  Such  a  contract  or  note  authorizes  the  person  who 
is  entitled  to  receive  the  goods,  to  demand  them  in  parcels.  lb. 
But  a  refusal  to  deliver  goods  to  the  value  of  twenty  dollars, 
which  had  been  packed  up  in  boxes  for  removal,  after  the  notice 
to  the  party  to  call  for  his  pay  at  the  vendor's  original  location, 
does  not  constitute  a  breach  of  the  contract.  lb. 

A  note,  payable  in  specific  articles,  may  be  demanded  in  par- 
cels ;  but  where  an  article  has  been  made  to  order  for  a  customer, 
-such  article  cannot  be  properly  demanded  in  payment  of  the 
note.     Vance  v.  Bloomer,  20  Wend.  196. 

Second.  When  a  chattel  note  is  given,  and  no  time  or  place  of 
payment  is  specified,  the  holder  of  the  note  must  make  a  demand 
of  the  articles  at  the  maker's  place  of  business  or  sale,  before  an 
action  will  lie  upon  the  note.  lb.;  Lobdell  v.  Hopkins,  5  Cow. 
516;  Durkee  v.  Marshall,  7  Wend.  312;  Cook  v.  FerralV  s 
Admrs.,  13  id.  285 ;  Counsel  v.  Vulture  Mining  Co.,  etc.,  5 
Daly,  74. 

Where  a  chattel  note  specifies  a  time  of  payment,  but  does 
not  mention  any  place  for  it,  the  note  is  payable  at  the  residence 
of  the  creditor,  if  the  articles  are  portable.  Goodwin  v.  Hol- 
hrook,  4  Wend.  377.  As  we  have  seen,  ante,  the  general  rule  is, 
that  the  store  of  the  merchant,  etc.,  is  the  place  of  payment, 
where  the  contract  is  silent  as  to  place  of  payment.  But  this 
rule  ceases  where  the  contract  is  modified  by  collateral  circum- 
stances which  show  that  a  diSerent  place  of  payment  was 
intended.  When  the  goods  are  a  subject  of  general  commerce, 
and  are  purchased  in  large  quantities  for  reshipment,  and  the 
purchaser  resides  at  the  place  of  reshipment,  and  has  at  such 
place  a  store-house  and  dock  for  that  purpose,  his  place  of  busi- 
ness is  ordinarily  the  place  of  delivery.  Bronson  v.  Gleason,  7 
Barb.  472.  Where  a  manufacturer  of  salt  at  Liverpool  executed 
a  writing  as  follows  :  "I  have  this  day  agreed  with  Bronson  & 
Crocker,  of  Oswego,  to  sell  them  one  boat  load  of  salt  per  week, 
and  delioer  the  same  to  them,  in  good  order,  equal  to  four  hun- 
dred barrels  each  week,  from  this  time  to  the  first  of  November 
next,"  etc. ;  it  was  held  that,  upon  the  reasonable  construction  of 


680  BILLS  AND  NOTES. 

the  agreement,  in  connection  with  the  surrounding  circumstances, 
the  salt  was  to  be  delivered  at  Oswego.  lb. 

Where  a  note  is  payable  in  specific  articles,  which  are  to  be 
delivered  by  the  maker  at  the  residence  of  the  payee,  by  a  time 
named,  but  a  timely  selection  of  the  articles  is  to  be  made  by 
the  payee,  who  makes  no  selection,  though  prior  to  the  time  for 
payment  he  instructs  the  maker  not  to  send  any  of  the  articles 
until  he  gives  notice  of  what  articles  he  wants,  the  maker  is  not 
thereby  discharged  from  his  liability  on  the  contract.  Oilbert  v. 
Danforth,  6  N.  Y,  (2  Seld.)  585.  The  payee,  by  such  instruc- 
tions and  failure  to  select,  does  not  lose  his  right  of  selection, 
unless  the  maker,  before  such  right  is  exercised,  has  paid  the 
amount  of  the  note  in  articles  of  his  own  selection.  lb.  Where 
such  a  note  remained  unpaid  for  two  years  after  it  became  due, 
and  the  payee  then  named  the  articles  which  he  required  in 
payment,  and  demanded  them  of  the  maker,  it  was  held  that  a 
neglect  or  refusal  by  such  maker,  to  comply  with  the  demand 
in  a  reasonable  time,  rendered  him  liable  to  pay  the  amount  in 
money.  lb. 

When  a  chattel  note  is  payable  at  a  particular  place,  other  than 
the  residence  of  the  promisee,  it  is  the  duty  of  the  promisor,  after 
making  the  delivery  at  that  place,  to  notify  the  promisee  of  such 
delivery,  without  delay.    Newcomh  v.  Cramer,  9  Barb.  402. 

Third.  Where  such  a  note  is  payable  on  demand,  a  special 
demand  is  necessary  before  an  action  can  be  maintained  upon 
it.  So  a  note  which  is  given  by  one  who  keeps  a  saw-mill  and 
lumber  yard,  for  a  specified  sum,  "payable  in  lumber,  at  cash 
price,  when  called  for,"  without  mentioning  a  day  or  place  of 
payment,  requires  a  demand  at  the  mill  yard,  before  an  action 
can  be  maintained.  Rice  v.  Churchill,  2  Denio,  145.  A  demand 
at  the  mill  yard  is  sufficient,  though  neither  the  maker  nor  any 
one  authorized  to  make  the  payment,  is  found  there.  lb.  If, 
upon  such  demand,  the  maker  be  absent,  it  may  be  made  of  any 
one  in  charge  ;  and  if  there  be  no  such  person,  it  may  be  made 
publicly.  lb.  The  maker  of  such  an  engagement  is  bound  to  be 
at  the  place  of  payment  at  all  reasonable  hours,  prepared  to 
perform  the  agreement.  lb.  When  a  note  is  made  payable  in 
"  sawing"  lumber  at  a  saw-mill,  at  a  certain  time  and  place,  and 
at  the  time  fixed  the  maker  is  absent  from  the  place,  and  has  no 
one  present  to  do  the  work,  and  the  payee  is  in  no  manner 
responsible  for  his  absence,  the  note  becomes  a  money  demand. 
Schnier  v.  Fay,  12  Kans.  184. 


BILLS  AND  NOTES.  681 

Fourth.  When  a  chattel  note  specifies  a  time  and  place  of 
payment,  it  is  the  duty  of  the  maker  to  pay  the  note  at  such 
time  and  place  without  any  previous  demand  ;  and  a  neglect  or 
refusal  to  do  so  will  render  him  liable  to  pay  the  amount  in 
money.  On  a  contract  for  services  paid  for  " out  of  the  store" 
of  a  third  person,  an  action  may  be  maintained  without  proof  of 
a  demand  of  payment  at  such  store.  Braydon  v.  Poland^  51 
Me.  323.  It  will  be  a  good  defense  to  show  that  the  goods  were 
ready  for  delivery  at  the  store  mentioned.  lb.  See  Loclilin  v. 
Moore,  57  N.  Y.  (12  Sick.)  360  ;  5  Lans.  307.  Where  a  note  is 
payable  in  ponderous  articles,  at  a  day  certain,  but  no  place  of 
payment  is  specified,  the  maker  of  the  note  ought,  if  he  desires 
to  make  a  tender,  to  seek  the  payee  or  holder  of  the  note  before 
the  day  of  payment,  and  ascertain  where  he  will  have  the  arti- 
cles delivered  ;  and  if  a  reasonable  place  is  named,  he  is  bound 
to  deliver  them  at  that  place.  Burns  v.  Graham,  4  Cow.  452.  If 
the  note  is  payable  generally,  or  at  a  place  specified,  the  articles 
ought  not  to  be  tendered  in  bulk,  mixed  and  undistinguishable 
from  others  of  the  same  kind  ;  but  they  should  be  separated  and 
distinguished,  so  that  the  payee  may  know  what  to  take.  lb. 

When  portable  articles  are  to  be  delivered  in  payment  of  a 
chattel  note,  on  or  before  a  specified  day,  but  no  place  of  pay- 
ment is  specified,  the  residence  of  the  creditor  is  the  place  of 
payment.  La  Farge  v.  Rickert,  5  Wend.  187 ;  Goodwin  v.  Hol- 
hrook,  4  id.  377.  But  when  such  a  note  is  payable  on  demand, 
or  is  payable  in  articles  which  are  manufactured,  etc.,  by  the 
maker,  the  note  is  payable  at  the  maker's  place  of  business,  etc. 
Ante,  578. 

Where  a  note  which  is  not  negotiable  is  sued  on  by  any  person 
other  than  the  payee,  the  possession  of  the  note  in  court,  at  the 
trial,  by  the  plaintiff,  is  not  prima  facie  evidence  that  the  note 
was  transferred  to  the  plaintiff  before  the  action  was  commenced, 
as  is  the  rule  in  relation  to  negotiable  paper.  Barrick  v.  Austin, 
21  Barb.  241.  Notes  not  negotiable  are  subject  to  all  equities 
which  could  have  been  enforced  against  the  payee.  Lee  v.  Swift, 
1  Denio,  565  ;  Rogers  v.  Morton,  12  Wend.  484 ;  Barrick  v.  Aus- 
tin, 21  Barb.  241. 


582  BILLS  AND  NOTES. 

ARTICLE  VI. 

GUARANTY  OF  BILLS  AND  NOTES. 

Section  1.  In  general.  The  subject  of  guaranties  in  relation 
to  promises  to  answer  for  the  debt,  default  or  miscarriage  of  an- 
other will  be  discussed  elsewhere. 

In  all  cases  of  guaranty  there  must  be  a  principal,  and  a  guar- 
antor or  surety.  And  it  is  a  general  rule  that  the  liability  of  the 
surety  is  merely  co-extensive  with  that  of  the  principal.  Though 
there  are  exceptions  to  this  rule,  in  the  case  of  infancy,  and  in 
other  instances  in  which  the  principal  is  not  bound  by  the  origi- 
nal contract.  But,  whenever  a  principal  is  discharged  from  his 
obligation,  by  payment,  accord  and  satisfaction,  release,  or  in 
any  other  manner,  the  surety  or  guarantor  is  also  discharged. 
This  result  flows  from  the  nature  of  the  contract.  A  guarantor 
merely  undertakes  to  pay  the  debt  of  another  in  case  he  does 
not  pay  it,  and  whenever  the  principal  debt  is  paid  or  discharged, 
the  surety  is  released  from  his  liability.  A  renewal  of  a  debt, 
by  taking  a  new  note  from  the  principal,  discharges  the  surety 
or  guarantor,  since  the  debt  which  he  guaranteed  is  canceled. 

A  guaranty  is  a  special  contract,  and  the  guarantor  is  not  in 
any  sense  a  party  to  the  note.  Lamorieux  v.  Hewit,  5  Wend. 
307  ;  Mlis  v.  Brown,  6  Barb.  282  ;  Miller  v.  Gaston,  2  Hill,  188, 
190. 

A  contract  of  guaranty,  though  indorsed  upon  a  negotiable 
note  and  drawn  in  general  terms  warranting  its  collection,  is  not 
of  itself  negotiable ;  because  the  statute  which  makes  promissory 
notes  negotiable,  is  not  extended  to  any  other  instrument  relat- 
ing to  the  note.  Lamorieux  v.  Hewlt,  5  Wend.  307  ;  post.  See 
Smith  v.  Starr,  4  Hun,  123  ;  6  S.  C.  (T.  &  C.)  387. 

Before  the  enactment  of  the  Code,  an  action  could  not  have 
been  maintained  upon  a  guaranty  in  the  name  of  any  other  per- 
son than  that  of  the  person  to  whom  it  was  given.  lb. 

But  a  contract  of  guaranty,  although  not  negotiable,  is  never- 
theless assignable,  when  it  is  so  drawn  as  to  be  available  in  the 
hands  of  any  person  who  may  hold  the  note  upon  which  it  is 
indorsed. 

Where  a  general  guaranty  is  written  upon  a  negotiable  promis- 
sory note,  and  the  note  is  transferred,  the  sale  and  delivery  of 
the  note,  with  the  guaranty  upon  it,  furnishes  prima  facie  evi- 
dence of  the  sale  of  the  contract  of  guaranty.     And  the  posses- 


BILLS  AND  NOTES.  583 

sion  of  the  note  and  the  guaranty  is  prima  facie  evidence  of  a 
right  in  the  holder  to  the  guaranty,  and  will  authorize  him  to 
maintain  an  action  thereon,  unless  it  be  shown  that  the  contract 
of  guaranty  was  not  transferred  at  the  time  the  note  was  trans- 
ferred. Cooper  V.  DedricTc,  22  Barb.  516  ;  and  see  McLaren  v. 
Watson's  ExWs,  26  Wend.  425  ;  S.  C,  9  id.  557.  But 
when  a  subsequent  holder  of  a  promissory  note  sues  upon  a 
guaranty  indorsed  thereon,  claiming  that  the  guaranty  passed 
to  him  on  the  transfer  of  the  note,  it  is  competent  for  the 
guarantor  to  show  that  it  was  not  the  intention  of  the  parties 
that  the  guaranty  should  accompany  the  note  on  the  transfer 
of  the  latter  to  the  plaintiff,  but  that,  on  the  contrary,  it  was 
expressly  agreed  that  he  should  take  the  note  at  his  own  risk. 
Gallagher  v.  White,  31  Barb.  92.  S.  made  a  note  payable  to  W., 
or  bearer,  W.  transferred  the  note  to  B.,  in  part  payment  for  a 
piano,  at  the  same  time  guaranteeing  its  collection  by  an  indorse- 
ment upon  the  back  thereof.  S.  failed  to  pay  the  note  at  maturity, 
and  W.  took  it  up  from  B.  W.  subsequently  transferred  the  note 
to  the  plaintiflf,  who  expressly  agreed  to  take  the  same  at  his  own 
risk.  Through  inadvertence,  however,  the  guaranty  was  not 
erased  at  the  time  of  the  transfer  ;  it  was  held  that  the  guaranty 
was  a  contract  between  W.  and  B,,  and  that  when  W.  paid  the 
amount  of  the  note  to  B.  and  took  it  up,  the  guaranty  was  extin- 
guished, having  performed  its  office,  and  that  the  plaintiff  could 
not  maintain  an  action  against  W.  upon  such  guaranty.   lb. 

Where  a  guaranty  warrants  the  payment  and  collection  of  a 
note  to  the  payee  or  holder,  or  bearer,  and  it  is  indorsed  upon  a 
negotiable  promissory  note,  such  guaranty  is  negotiable,  and 
an  action  could  have  been  maintained  in  the  name  of  the  owner 
of  the  note,  upon  such  guaranty,  even  before  the  Code.  KetcJicll 
V.  Burns,  24  Wend.  456  ;  Miller  v.  Gaston,  2  Hill,  188.  No  no- 
tice of  dishonor  or  non-payment  is  necessary  in  the  case  of  a 
guaranty,  as  is  required  by  the  rules  relating  to  an  indorsement. 
Brown  v.  Ourtlss,  2  Comst.  225  ;  Allen  v.  Rlghtmere,  20  Johns. 
365.  A  guarantor  and  the  principal  debtor  may  be  sued  jointly, 
if  the  principal  and  the  guarantor  are  both  bound  by  the  same 
instrument.  Code,  §  120  ;  Carman  v.  Plass,  23  N.  Y.  (9  Smith) 
286.  See  Cridler  v.  Curry,  66  Barb.  336  ;  44  How.  345  ;  Field  v. 
Van  Cott,  5  Daly,  308  ;  15  Abb.  (N.  S.)  349. 

But  it  has  been  held  by  the  supreme  court,  that  where  a  guar- 
anty and  the  principal  debt  are  written  on  different  papers,  the 
principal  and  the  surety  cannot  be  sued  together.     De  Bidder  v. 


684  BILLS  AND  NOTES. 

ScJiermerhorn,   10  Barb.  638 ;  Allen  v.  Fosgate,  11  How.  218 ; 
Barton  v.  Speis,  5  Hun,  60. 

The  terms  of  a  guaranty  must  be  complied  with  before  the 
guarantor  can  be  rendered  liable  upon  the  contract.  Henderson 
V.  Marmn,  31  Barb.  297.  And  where  a  guaranty  for  the  pay- 
ment of  goods  to  a  specified  sum  was  given,  on  a  credit  of  six 
months,  and  the  goods  were  furnished,  but  the  vendor  subse- 
quently extended  the  time  of  jyiyment  for  a  part  of  the  amount, 
and  shortened  the  time  as  to  the  6ther  portion  of  the  debt,  and 
took  the  note  of  the  principal  therefor,  it  was  held  that  the  surety 
was  discharged.  lb. 

Where  the  person  to  whom  a  guaranty  is  given  is  bound  to  do 
some  act  before  there  is  any  liability  on  the  part  of  the  guarantor, 
such  person  must  show  that  he  has  performed  the  act,  or  he  can- 
not maintain  an  action  against  the  guarantor.  Eddy  v.  Stanton, 
21  Wend.  255 ;  Taylor  v.  Bullen,  6  Cow.  624  ;  Nelson  v.  Bost- 
wick,  5  Hill,  37.  In  case  of  a  guaranty,  the  obligation  to  prose- 
cute the  principal  debtor  within  a  reasonable  time,  and  with  due 
diligence,  is  a  condition  precedent  to  the  liability  of  the  guaran- 
tor. OallagJier  v.  White,  31  Barb.  92 ;  Craig  v.  Barkis,  40  N. 
Y.  (1  Hand)  181.  A  request  to  prosecute  the  principal  debtor, 
when  he  is  insolvent  at  the  time  of  the  request,  and  so  remains, 
is  not  sufficient  to  discharge  the  surety.  Field  v.  Cutis,  4  Lans. 
195. 

Guarantees  are  sometimes  expressed  in  the  form  of  letters  of 
request.  Such  letters  are  general  or  special.  They  are  general 
when  addressed  to  any  or  to  all  persons,  without  naming  any 
one  in  particular.  They  are  special  when  addressed  to  one  per- 
son or  firm  in  particular,  by  name.  When  addressed  to  all 
persons,  a  letter  is  in  effect  a  request  made  to  any  person  to 
whom  it  may  be  presented,  and  any  individual  may  accept  and 
act  upon  the  proposition  contained  in  it,  and  when  he  does  so, 
that  which  was  before  indefinite  and  at  large,  becomes  definite 
and  fixed  ;  a  contract  immediately  springs  up  between  the  person 
making  the  advance  and  the  writer  of  the  letter,  and  it  is  thence- 
forward the  same  thing  in  legal  effect  as  though  the  name  of  the 
former  had  been  inserted  from  the  beginning.  Birckhead,  v. 
.Brown,  5  Hill,  642,  643,  per  Bkonson,  J.;  S.  C,  2  Denio,  375  ; 
Union  Bank  v.  Coster,  1  Sandf.  563  ;  S.  C,  3  Comst.  203.  A 
general  letter  of  credit  authorizes  any  person  to  whom  it  is  pre- 
sented to  act  upon  the  proposition  therein  contained  ;  and  when 
any  person  does  act  thereon,  a  contract  arises  between  him  and 


BILLS  AND  NOTES.  585 

tlie  maker  of  the  instrument,  in  the  same  manner  as  though  it 
had  been  addressed  to  him  by  name.  Union  Bank  v.  Coster^  3 
Comst.  203  ;  S.  C,  1  Sandf.  563 ;  ante,  81,  98. 

But  where  a  letter  of  credit  is  special,  and  is  addressed  to  a 
particular  person  or  firm,  no  other  person  than  the  one  to  whom 
it  is  addressed  ^n  maintain  an  action  upon  it,  although  he  may- 
have  advanced  the  money  upon  it.  Birckhead  v.  Brown,  5  Hill, 
634  ;  S.  C,  2  Denio,  375.     Such  letters  are  not  negotiable.  lb. 

There  must  be  a  consideration  for  such  letters  as  well  as  for 
any  other  contracts.  But  where  a  letter  of  credit  is  issued,  the 
request  which  it  contains  is  sufficient  consideration  if  the  money 
is  advanced  on  it.  tfnion  Bank  v.  Coster,  3  Comst.  203  ;  S.  C, 
1  Sandf.  663,  and  see  ante,  81,  98. 


ARTICLE  YII. 

INDORSEMENT   AND   TRANSFER   OF    BILLS   AND   NOTES, 

Section  1.  lu  geueraL  The  negotiability  of  bills  and  notes  con- 
stitutes a  most  important  part  of  the  instruments.  It  is  this 
quality  which  principally  distinguishes  a  bill  of  exchange  or 
promissory  note  from  ordinary  contracts.  By  the  general  rules 
of  the  common  law,  choses  in  action  were  not  assignable.  But 
bills  of  exchange  were  an  exception,  and  were  assignable  at  com- 
mon law.  Promissory  notes,  however,  were  not  negotiable  under 
the  rules  of  the  common  law,  but  they  now  are,  and  for  a  long 
time  they  have  been  assignable  by  virtue  of  statutes  enacted  for 
that  purpose.  The  term  "assignable,"  as  it  has  been  just  em- 
ployed, is  synonymous  with  the  word  "negotiable." 

Negotiable  bills  and  notes  are  payable  to  the  bearer  of  them, 
or  to  the  order  of  the  payee  named  therein.  At  any  rate  they 
must  have  terms  of  negotiability  to  render  them  negotiable. 
And,  when  they  are  negotiable  within  the  rules  of  law,  they  may 
be  transferred  from  hand  to  hand  so  as  to  give  the  indorsee  or 
holder  a  right  of  action  in  his  own  name,  as  against  any  or  all  of 
the  antecedent  parties  to  the  instrument. 

There  are  many  cases  in  which  a  chose  in  action  is  assignable, 
so  as  to  authorize  an  action  in  the  name  of  the  assignee,  if  he  is 
the  real  party  in  interest ;  but  this  fact  does  not  by  any  means 
render  the  right  of  action  which  is  so  assigned,  a  negotiable 
instrument. 

Where  a  bill  or  note  is  payable  to  a  person  named,  or  to  hearer, 
Vol.  I.  —  74 


586  BILLS  AND  NOTES. 

a  transfer  of  the  instrument  may  be  made  by  a  mere  delivery 
without  any  writing.  And  where  a  note  is  payable  to  B,  or 
bearer,  it  may  be  negotiated  by  delivery  only,  even  though 
indorsed  by  B.  Wllbour  v.  Turner,  5  Pick.  526  ;  Dole  v.  Weeks, 
4  Mass.  451.  But  where  it  is  made  payable  to  a  specified  person, 
or  his  order,  it  must  be  indorsed  by  the  payee  to  render  it 
negotiable.  Harrop  v.  Fisher,  10  C.  B.  (N.  S.)  196 ;  Hestom  v. 
Williamson,  2  Bibb,  83  ;  Russell  v.  Swan,  16  Mass.  314.  The 
payee  of  a  note  may  transfer  it  by  an  indorsement  in  pencil 
marks.     Classon  v.  Stearns,  4  Vt.  11. 

A  bill  or  note  payable  to  the  order  of  the  payee  may  be 
assigned  without  indorsement ;  but  it  thus  assigned,  instead  of 
being  transferred  by  a  proper  indorsement,  the  assignee  will  take 
the  paper  subject  to  all  equities,  in  the  same  manner  as  though 
the  instrument  were  not  negotiable,  or  as  though  it  were  over 
due.  Billings  v.  Jane,  11  Barb.  620 ;  Hedges  v.  Sealy,  9  id. 
214 ;  Houghton  v.  Dodge,  5  Bosw.  326  ;  White  v.  Brown,  14 
How.  282 ;  Haskell  v.  Mitchell,  53  Me.  468 ;  Whistler  v.  Foster, 
14  C.  B.  (N.  S.)  248.  If  a  note  payable  to  bearer  be  indorsed  by 
the  payee,  he  will  be  liable  as  an  indorser.  Dams  v.  Wilson, 
31  Tex.  136. 

The  transfer  of  a  bill  or  note  is  a  contract,  and  there  must  be 
capacity  and  assent,  to  render  the  transfer  valid.  Ante,  82, 
Assent,  etc. 

Where  a  note  is  payable  to  a  corporation,  or  its  order,  and  the 
note  is  indorsed  by  the  president  of  the  corporation,  and  it  is 
then  delivered  to  the  indorsee,  it  is  necessary  for  the  latter  to 
prove  the  authority  of  the  president  to  indorse  the  note,  so  as  to 
transfer  the  title,  when  he  sues  on  it,  and  the  indorsement  is  de- 
nied'in  the  pleadings.  Marine  Bank  v.  Clements,  3  Bosw.  600; 
31  N.  Y.  (4  Tiif.)  33.  A  general  resolution  sufiiciently  broad  to 
cover  the  transaction  will  be  sufficient  evidence  of  the  president's 
authority  ;  it  is  not  necessary  to  show  an  authority  for  that  par- 
ticular transfer.  Elwell  v.  Dodge,  33  Barb.  336  ;  see  Belden  v. 
Meeker,  2  Lans.  470 ;  47  N.  Y.  (2  Sick.)  307;  Nelson  v.  Eaton, 
26  N.  Y.  (12  Smith)  410.  The  contract  of  an  infant  is  voidable, 
and  not  absolutely  void.  He  may,  therefore,  indorse  a  bill  or 
note  so  as  to  transfer  the  title,  though  he  would  not  be  estopped 
from  avoiding  the  liability  of  an  indorser,  by  pleading  his 
infancy.  Nightingale  v.  Withington,  15  Mass.  272;  Sehel  v. 
Tucker,  8  B.'&  S.  833. 

By  the  rules  of  the  common  law,  bills  and  notes  belonging  to 


BILLS  AND  NOTES.  687 

the  wife  at  the  time  of  the  marriage,  or  at  any  subsequent  time, 
belonged  to  her  husband,  and  he  was  the  proper  person  to  indorse 
them.  But  the  statute  law  of  the  various  States  has  abrogated  these 
common-law  rules.  And  a  married  woman  now  has  as  absolute  a 
title  to  her  property,  including  bills  and  notes,  as  she  would  have 
if  she  had  remained  a  single  Avoman.  See  Laws  of  N.  Y.  1848, 
chap.  200,  and  as  amended,  1849,  chap.  375 ;  Laws  of  1860,  chap. 
90  ;  as  amended,  1862,  chap.  172.  As  the  law  now  stands,  a  mar- 
ried woman  is  the  proper  person  to  indorse  a  bill  or  note  which  be- 
longs to  her,  and  which  is  payable  to  her  order.  And  when  it  is 
her  property,  and  it  is  payable  to  herself,  or  bearer,  she  is  the 
proper  person  to  transfer  it  by  delivery.  In  short,  all  bills  and 
notes  which  belong  to  her  should  be  indorsed  or  transferred  by 
her  in  the  same  manner  as  though  she  were  an  unmarried  woman. 
See  Married  Women;  Husband  and  Wife. 

On  the  death  of  the  holder  or  payee  of  negotiable  bills  or  notes, 
his  executor  or  administrator  becomes  vested  with  the  title,  and 
he  has  the  right  and  power  to  transfer  them  by  an  indorsement, 
or  by  a  delivery,  when  that  is  sufficient.  RaioUnson  v.  Stone^ 
3  Wils.  1 ;  S.  C,  2  Strange^  1260;  and  see  2  Burr.  1225.  Au 
administrator  may  indorse  and  transfer  a  note  payable  to  his  in- 
testate, and  the  indorsee  may  maintain  an  action  on  the  note  in 
his  own  name.  Cahoon  v.  Moore,  11  Vt.  604 ;  Griswold  v.  Bar- 
num,  5  id.  269  ;  Morse  v.  Clayton,  13  Sm.  &  Marsh.  373  ;  Cryst 
V.  Cryst,  1  Smith  (Ind.),  370.  Such  indorsement  is  valid,  and 
may  be  enforced  in  any  other  State.  Graw  v.  Hannah,  6  Jones 
(Law),  94.  A  transfer  of  a  note  due  to  an  estate  by  an  administra- 
tor, in  payment  of  his  own  debt,  gives  to  the  assignee  with  notice 
no  right  of  recovery.     Scott  v.  Searles,  7  Sm.  &  Marsh.  498. 

Where  a  bill  or  note  belongs  to  a  person,  and  it  is  in  his  pos- 
session at  the  time  of  his  death,  no  person  but  his  executor  or 
administrator  can  transfer  the  title  to  it  to  a  third  person*  lb. ; 
Lounshury  v.  Depeio,  28  Barb.  44  ;  Heldenlieimer  v.  Wilson,  31 
id.  636 ;  Edwards  v.  Campbell,  23  id.  423.  Executors  and 
administrators  hold  the  bills  and  notes  of  the  testator,  or  intestate, 
in  a  representative  capacity  ;  and  consequently,  each  of  them 
represents  the  deceased,  and  the  act  of  each  is  binding  upon  the 
estate  when  he  transfers  such  bills  or  notes.  A  transfer  by  one 
of  several  executors  or  administrators  is  as  valid  as  a  transfer  by 
all  of  them.  Bogert  v.  Hertell,  4  Hill,  492  ;  S.  C,  9  Paige,  52  ; 
and  see  Meakings  v.  Cromwell,  1  Seld.  136 ;  Murray  v.  Blatcli- 
ford,  1  Wend.  583.     But  the  right  to  indorse  a  bill  or  note  for 


688  BILLS  AND  NOTES. 

the  purpose  of  transferring  it  does  not  include  the  power  to  in 
dorse  notes  generally  so  as  to  bind  the  estate.  And  where  an 
executor  or  administrator  assumes  to  bind  the  estate  by  giving  a 
note  as  executor  or  administrator,  he  must  be  careful  to  employ 
language  which  shows  that  the  note  is  payable  out  of  the  assets 
of  the  estate,  or  that  he  makes  the  note  in  a  representative 
capacity  ;  or  he  will  be  personally  liable  to  pay  it.  CMlds  v. 
Monins,  2  Brod.  &  Bing.  460  ;  Powell  v.  Graham,  7  Taunt.  580 ; 
King  V.  Thorn,  1  Term,  487.  Administrators  who  have  given  a 
note  for  the  debt  of  their  intestate  cannot  be  made  personally 
responsible  for  its  payment,  unless  it  is  shown  that  they  have 
assets,  or  that  forbearance  was  the  consideration  of  the  note. 
Bank  of  Troy  v.  Topping,  9  Wend.  273.  A  note  given  by  an 
executor  or  administrator  is  'prima  facie  evidence  of  assets, 
though  the  presumption  may  be  rebutted,  and  it  may  be  shown 
that  there  was  a  deficiency  of  assets.  Bank  of  Troy  v.  Topping, 
13  Wend.  557  ;  see  Sims  v.  Stillwell,  3  How.  (Miss.)  176  ;  Rucker 
V.  Wadlington,  5  J.  J.  Marsh.  238.  One  who  signs  an  order  "A  B, 
administrator,"  with  nothing  to  show  or  designate  the  deceased 
person  or  estate,  will  be  personally  liable  as  drawer.  Tryon  v. 
Oxley,  3  Iowa,  289.  Transfers  of  bills  and  notes  by  corporations, 
or  to  them,  are  of  frequent  occurrence.  An  indorsement  of  a  note 
by  the  holder,  in  these  words :  "  Pay  to  E.  O.,  cashier,  or  order," 
made  upon  the  purchase  of  it  by  the  bank  of  which  E.  O.,  was 
cashier,  is  a  legal  transfer  of  the  note  to  the  bank.  Watervliet 
Bank  v.  Wliite,  1  Denio,  608.  An  officer  of  a  corporation,  to 
whose  order,  as  such,  a  note  executed  to  it  is  payable,  and  who 
indorses  the  note,  adding  to  his  name  his  official  character,  and 
negotiating  it  on  behalf  of  the  corporation,  is  not  personally  re- 
sponsible as  indorser.  The  effect  of  such  an  indorsement  is  merely 
to  transfer  the  paper.  Babcock  v.  Beman,  11  N.  Y.  (1  Kern.) 
200;  "S.  C,  1  E.  D.  Smith,  593  ;  Mott  v.  Hicks,  1  Cow.  513.  A 
bill  drawn  payable  to  an  individual  as  cashier,  is  in  judgment  of 
law,  payable  to  the  bank  of  which  he  is  an  officer.  Bank  of 
New  York  v.  Bank  of  Ohio,  29  N.  y.  (2  Tiff.)  619.  An  assignee 
of  an  insolvent  estate,  who  indorses  a  note  as  "assignor"  in  the 
transfer  of  a  note  belonging  to  the  estate,  is  not  personally 
liable.  Bowne  v.  Douglass,  38  Barb.  312.  An  indorsement  of  a 
bill  or  note  usually  operates  as  a  transfer  of  the  instrument,  and 
it  also  constitutes  an  agreement  by  the  indorser  to  pay  the  instru- 
ment transferred  upon  certain  conditions.  But  an  indorsement 
may  be  so  framed  as  to  exclude  any  liability  on  the  part  of  the 


BILLS  AND  NOTES.  689 

indorser.  And,  when  it  is  evident  from  the  indorsement,  that  no 
personal  liability  was  assumed,  none  will  be  enforced  by  the  law. 
It  is  upon  this  principle  that  an  officer  of  a  corporation  is  not 
liable  upon  an  indorsement  for  the  mere  purpose  of  transferring 
a  bill  or  note  belonging  to  the  corporation,  when  the  transfer  is 
made  exclusively  for  the  benefit  of  such  corporation.  So,  the 
same  rule  applies  when  a  note  is  indorsed  by  an  agent,  and  the 
instrument  shows  on  its  face  that  he  was  a  mere  agent.  Hicks  v. 
Hinde,  9  Barb.  528  ;  Mott  v.  Hicks,  1  Cow.  514 ;  Babcock  v. 
Beman,  11  N.  Y.  (1  Kern.)  200;  Hood  v.  Hallenbeck,  7  Hun, 
362. 

The  right  to  transfer  a  bill  or  note  is  usually  vested  in  the 
payee  named  in  the  instrument.  By  making  the  note,  or  by 
accepting  the  bill  and  issuing  it,  the  maker  and  acceptor  assert 
to  the  world  that  the  payee  is  competent  to  negotiate  and  assign 
the  paper  ;  and  they  will  not  be  afterward  permitted  to  gainsay 
the  assertion  so  made.  The  general  rule  in  relation  to  the  trans- 
fer of  bills  and  notes  is,  that  no  one  but  the  payee  or  the  person 
legally  interested  in  the  instrument  can  convey  the  title  by  an  in- 
dorsement. Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287;  ante,  587. 
But  where  the  payee  named  in  a  bill  of  exchange  is  a  stranger  to 
the  transaction,  and  he  has  no  interest  in  it,  nor  any  knowledge 
of  it,  his  indorsement  is  not  necessary,  if  the  drawer  forges  the 
signature  of  such  payee  to  the  indorsement,  and  then  puts  the 
bill  into  circulation.  In  such  a  case  the  drawer  of  the  bill  is 
liable  upon  it  to  the  person  who  discounted  it,  or  to  any  bona 
fide  holder  thereof  ;  and  if  the  drawee  pays  the  money  upon  it 
to  a  bank  which  holds  the  bill  for  collection,  he  cannot  recover 
back  the  amount  paid.  Coggill  v.  American  Exchange  Bank,  1 
Comst.  113.  But  in  such  a  case,  if  the  payee  is  a  bona  fide 
owner  of  the  bill,  and  his  signature  to  the  indorsement  is 
forged,  and  the  drawee  or  acceptor  pays  the  money  to  one  who 
holds  the  bill  under  this  forged  indorsement,  the  payment  will 
be  made  at  the  risk  of  the  drawee,  and  he  will  be  compelled  to 
pay  the  amount  of  the  bill  to  the  payee,  whose  title  is  unimpaired 
by  the  forgery.     Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287. 

The  drawee  of  a  bill  of  exchange  is  bound  to  ascertain  that  the 
person  to  whom  he  makes  payment  is  the  genuine  payee,  or  is 
authorized  by  him  to  receive  it.  It  is  no  defense  against  such 
payee,  that  the  drawee  in  the  regular  course  of  business  and  with 
nothing  to  excite  suspicion,  paid  the  bill  to  a  holder  in  good 
faith  and  for  value  under  the  indorsement  of  a  person  bearing 


690  BILLS  AND  NOTES. 

the  same  name  as  the  payee.  Graves  v.  American  Exchange 
Bank,  17  N.  Y.  (3  Smith)  205 ;  Mead  v.  Young,  4  Term,  28 ; 
National  Park  Bank  v.  Ninth  National  Bank,  46  N.  Y.  (1 
Sick.)  77 ;  7  Am.  Rep.  310.  The  rule  that  the  paj^ee  must  first 
indorse  a  note  is  founded  upon  the  fact  tliat  he  alone  can  trans- 
fer it ;  when  there  is  no  transfer  of  the  note,  the  reason  of  the 
rule  fails,  and  it  is  therefore  inapplicable.  Waterhury  v.  Sin- 
clair, 26  Barb.  455 ;  25  How.  691,  n.  And  where  a  note  was 
made  by  D.  payable  to  W.,  or  order,  and  before  the  delivery 
thereof  to  the  payee,  it  was  indorsed  by  S.,  to  enable  D.  to  obtain 
credit  with  W. ;  it  was  held  that  S.  was  liable  as  indorser  to  the 
payee,  upon  proof  of  presentment,  non-payment  and  notice.  lb. 
It  was  also  held  that  it  was  not  necessary  that  there  should  be 
an  indorsement  by  the  payee,  in  order  to  perfect  his  rights.  lb. 

The  names  of  all  the  parties  to  a  bill  or  note  ought  to  be 
plainly  written  ;  and  where  there  are  two  or  more  persons  of  the 
same  name  in  a  place,  some  description  of  the  person  ought  to 
be  given,  for  the  purpose  of  identifying  the  real  person  intended. 
The  omission  will  not  prejudice,  if  the  proper  person  is  ascer- 
tained. An  indorsement  may  be  made  in  pencil  mark,  and  by 
the  initials  instead  of  the  full  name,  if  the  indorser  chooses  to 
write  his  name  in  that  manner.     Ante,  554,  586. 

Since  the  enactment  of  the  Code,  a  mere  holder  of  a  negotiable 
promissory  note,  who  has  no  interest  in  it,  cannot  now,  as  he 
might  formerly,  maintain  an  action  in  his  own  name  upon  it.  If 
the  plaintiff's  name  does  not  appear  upon  the  instrument,  it  is 
essential  for  him  to  show  in  some  way  the  connection  between 
himself  and  the  note,  as  that  it  has  been  indorsed  or  transferred 
to  him,  or  that  he  is  the  holder  or  owner  of  the  note.  Code,  §§ 
111,  113,  162 ;  Lord  v.  Ohesehrough,  4  Sandf.  696  ;  White  v. 
Brown,  14  How.  282. 

Where  the  payee  or  holder  of  a  negotiable  bill  or  note  intrusts 
it  to  an  agent  for  the  purpose  of  negotiating  it,  or  permits  him 
to  deal  with  it  as  his  own,  if  the  agent  fraudulently  transfers  it 
to  a  hona  fide  purchaser  for  value  and  without  notice  of  the 
defect  in  the  agent's  title,  such  bona  fide  holder  will  hold  the 
note  in  preference  to  the  real  owner.  Stalker  v.  McDonald,  6 
Hill,  93.  An  indorsee  of  a  negotiable  promissory  note,  who 
receives  it  in  the  usual  course  of  business,  without  notice  that  it 
was  made  for  a  specific  purpose,  or  of  any  equities  between  the 
parties,  is  a  holder  in  good  faith,  and  if  he  takes  it  as  a  collateral 
security,  he  will  be  deemed  a  holder  for  value.    Bank  of  New 


BILLS  AND  NOTES.  591 

YorTi  V.  Vanderhorst,  32  N.  Y.  (5  Tiff.)  553.  See  Weaver  v. 
Barden,  49  N.  Y.  (4  Sick.)  286  ;  Piatt  v.  Beehe,  57  N.  Y.  (12 
Sick.)  339. 

But  if  such  note  or  bill  is  taken  by  a  person  who  does  not  pay 
value,  or  by  one  who  has  knowledge  of  the  facts  as  to  the  title, 
he  will  not  hold  it  as  against  the  true  owner.  Spear  v.  Myers,  6 
Barb.  445  ;  White  v.  Springfield  Bank,  1  id.  225  ;  Stewart  v. 
Small,  2  id.  559  ;  Ooldsmid  v.  Lewis  County  Bank,  12  id.  407 ; 
New  York  Exchange  Co.  v.  De  Wolf,  3  Bosw.  86  ;  Farrington 
V.  Frankfort  Bank,  24  Barb.  554.  When  negotiable  paper  is 
transferred  to  an  agent  for  a  special  purpose,  which  is  plainly 
expressed  in  the  indorsement,  such  paper  cannot  be  transferred 
so  as  to  prejudice  the  rights  of  the  true  owner.  An  indorsement 
thus,  "pay  to  A  B  for  my  use,"  or  " pay  to  C  D,  or  order,  for 
my  use,"  is  sufficient  notice  that  the  paper  is  the  property  of  the 
indorser,  and  not  that  of  the  indorsee.  Snee  v.  Prescot,  1  Atk. 
245,  249  ;  Attwood  v.  3funnings,  7  Barn.  &  Cress.  278  ;  Sigour- 
ney  v.  Lloyd,  8  id.  622;  Edie  v.  East  Lidia  Co.,  2  Burr.  1227  ; 
Ancher  v.  Bank  of  England,  2  Doug.  637.  When  a  bill  upon 
the  face  of  it  purports  to  be  accepted  per  procuration,  that  circum- 
stance is  notice  to  any  party  who  takes  the  bill,  that  the  acceptor 
has  but  a  limited  authority,  and  the  holder  cannot  maintain  an 
action  against  the  principal  if  the  authority  has  been  exceeded, 
Stagg  v.  Elliott,  12  C.  B.  (N.  S.)  373  ;  Alexander  v.  Mackenzie, 
6  id.  766.  But  where  a  person  permits  another  to  act  as  his 
general  agent,  he  is  bound  by  .a  contract  made  by  the  agent, 
although  the  latter  declares  himself  to  be  acting  "by  procura- 
tion," and  has  received  special  instructions,  which  he  exceeds. 
Smith  V.  McQuire,  3  Hurlst  &  Norm.  554. 

When  a  bill  or  note  is  made  payable  to  several  persons,  or 
when  it  is  indorsed  to  more  persons  than  one,  who  are  not  part- 
ners, all  of  the  payees  or  indorsees  must  unite  in  transferring  the 
instrument.  Carwick  v.  Ylchery,  2  Doug.  653,  n. ;  Snelling  v. 
Boyd,  5  Monroe,  172.  But  where  a  promissory  note  is  made 
payable  to  the  order  of  A  and  B,  and  is  indorsed  A  and  B  by 
one  of  the  payees,  with  the  sanction  and  approval  of  the  others, 
this  is  a  sufficient  indorsement,  although  there  is  no  such  firm  as 
A  and  B.     Cooper  v.  Bailey,  52  Me.  230. 

But  when  a  note  is  made  payable  to  a  firm,  or  when  a  note  is 
indorsed  to  a  firm,  either  of  the  partners  has  authority  to  trans- 
fer the  instrument  by  an  indorsement  of  the  partnership  name. 
Cumpston  v.  McNair,  1  Wend.  457,  463.     Or  by  an  indorsement 


592  BILLS  AND  NOTES. 

in  his  individual  name.  Emrit  v.  Strong,  5  Hill,  163;  S.  C,  7 
id.  585 ;  Alabama  Co.  v.  Brainard,  35  Ala.  476.  After  the 
dissolution  of  a  partnership,  all  the  partners  must  unite  in  the 
transfer  of  a  partnership  security,  in  order  to  vest  the  title  in  the 
transferee.  Geortner  v.  Trustees  of  Canajoharie,  2  Barb.  625  ; 
National  Bank  v.  Norton,  1  Hill,  572 ;  8anford  v.  MicJcles,  4 
Johns.  224. 

Upon  the  death  of  one  of  the  partners  in  a  firm,  the  survivor 
is  entitled  to  the  possession  of  the  accounts,  notes,  bills,  etc., 
and  he  has  authority  to  collect  all  demands  due  to  the  firm. 
Ante.  And  in  such  a  case,  the  survivor  is  the  proper  person  to 
indorse  and  transfer  a  bill  or  note  which  belonged  to  the  firm 
at  the  time  of  the  death  of  such  partner.  His  indorsement  will 
transfer  the  title ;  though  the  survivor  cannot  create  liabilities 
against  the  representatives  of  the  deceased  partner. 

A  general  assignment  made  by  an  insolvent  debtor  for  the 
benefit  of  his  creditors,  transfers  the  legal  title  to  the  assignee  ; 
and  he  is  the  proper  person  to  indorse  bills  or  notes  which  are 
thus  assigned.  A  bill  or  note  may  be  transferred  before  it  is 
due,  or  after  that  time.  But  there  is  one  important  difference  in 
relation  to  the  time  of  the  transfer,  since  a  note  which  is  trans- 
ferred after  it  becomes  due,  subjects  the  party  taking  it  to  all 
the  equities  which  exist  at  the  time  of  the  transfer,  while  a  trans- 
fer of  a  negotiable  bill  or  note  before  it  is  due,  for  value  and  in 
good  faith,  entitles  the  hold&r  to  recover  irrespective  of  any 
prior  equities.  Ante,  561. 

A  bill  or  note  does  not  lose  its  negotiable  character  by  being 
dishonored,  and  the  indorsement,  although  made  after  dishonor, 
follows  the  nature  of  the  original  contract,  and  is  negotiable, 
unless  it  contains  express  words  of  restriction.  Leamtt  v.  Put- 
nam, 3  Comst.  494.  But  in  such  a  case  the  note  cannot  be  pre- 
sented, at  maturity,  by  the  indorsee,  and  the  contract  of  the 
indorser  then  is  to  pay  on  demand  of  the  maker,  his  neglect  or 
refusal  to  pay,  and  notice  to  the  indorser,  within  a  reasonable 
time  after  the  transfer.  lb. ;  Mutford  v.  Walcot,  1  Ld.  Raym. 
574;  Berry  v.  Robinson,  9  Johns.  121;  Yan  Hoesen  v.  Van 
Alstyne,^' WQXidi.  75,79. 

The  fact  that  a  bill  has  been  protested  does  not  prevent  its 
subsequent  acceptance  by  the  drawee.  Btockwell  v.  Bramble,  3 
Ind.  428.  And  such  acceptance  after  the  time  of  payment  is  bind- 
ing. Williams  v.  Winans,  2  Green,  239,  A  drawee  who  accepts 
after  the  bill  has  been  indorsed  over  is  liable  to  the  indorsee. 


BILLS  AND  NOTES.  593 

Bank  of  Louismlle  v.  Ellery,  34  Barb.  630 ;  First  National 
Bank  of  Portland  v.  Schuyler,  7  J.  &  Sp.  440 ;  Mechanics* 
Bank  v.  Limngston,  33  Barb.  458. 

A  transfer,  as  well  as  an  acceptance  of  a  bill  of  exchange, 
supposes  the  existence  of  the  bill  transferred  or  accepted  ;  but  a 
blank  indorsement  will  operate  as  a  transfer  of  a  bill  not  jei 
drawn ;  and  it  is  no  objection  to  the  validity  of  a  bill  that  the 
acceptance  was  written  before  the  bill  was  filled  up.  Mitchell  v. 
Culver,  7  Cow.  336  ;  and  Mechanics^  Bank  v.  Schuyler,  in  note; 
Schultz  V.  Astley,  2  Bing.  N.  C.  544 ;  Russel  v.  Langstaffe, 
Dougl.  614.  The  legal  prtsumption  is,  that  a  bill  or  note  was 
indorsed  at  the  time  it  was  made,  or  before  it  became  due,  unless 
there  are  circumstances  to  show  to  the  contrary.  James  v. 
Chalmars,  6  N.  Y.  (2  Seld.)  209;  Pinkerton  v.  Bailey,  8  Wend. 
600.  The  law  of  the  place  where  an  indorsement  is  made  is  the 
law  which  controls  the  rights  and  regulates  the  duties  of  the 
parties  to  the  bill  or  note.  Aymar  v.  Sheldon,  12  id.  439 ; 
Everett  v.  Vendryes,  19  N.  Y.  (5  Smith)  436.  When  a  bill  or 
note  is  payable  to  bearer,  or  to  a  certain  person  or  bearer,  no 
indorsement  is  necessary  for  the  purpose  of  transferring  the  title 
to  the  instrument.  But  where  it  is  payable  to  order,  or  to  a  cer- 
tain person  or  order,  a  written  indorsement  is  necessary,  in  order 
to  render  the  bill  or  note  available  as  a  negotiable  security  in 
the  hands  of  the  indorsee. 

It  has  been  seen  that  such  a  bill  or  note  may  be  assigned  with- 
out  a  written  indorsement,  but  the  title  is  that  of  an  assignee, 
and  not  that  of  an  indorsee.  Ante.  Indorsements  are  usually 
made  in  something  like  the  following  forms  : 

1.  Indorsement  hy  drawer  or  'p'^V^^  '"^  blank,  "James  Atkins." 
2.  Like,  hy  a  partner,  "Atkins  &  Co.,"  or,  '•'•For  self  and 
Thompson,  James  Atkins."  3.  Lilce,  by  an  agent,  "Per  pro- 
curation, James  Atkfns,  John  Adams  ; "  or,  "As  agent  for  James 
Atkins,  John  Adams."  4.  Qualified  indorsement,  to  avoid  per- 
sonal liahility,  "James  Atkins,  sans  recourse;"  or,  "James 
Atkins,  with  intent  only  to  transfer  my  interest,  and  not  to  be 
subject  to  any  liability  in  case  of  non-acceptance  or  non-pay- 
ment." Post.  5.  Indorsement  in  full  or  special,  "Pay  John 
Holloway,  or  order,  James  Atkins."  6.  Restrictive  indorsement 
in  favor  of  indorser,  "Pay  John  Holloway,  for  my  use,  James 
Atkins;"  or,  "Pay  John  Holloway,  for  my  account,  James 
Atkins."    7.  Restrictivie  indorsement  in  famr  of  indorsee  or  a 

Vol.  L  — 75 


694  BILLS  AND  NOTES. 

particular  person  only,  "Pay  G.  S.  only,  James  Atkins;"  or, 
''The  within  must  be  credited  to  A  B,  James  Atkins." 

An  indorsement  of  a  note  without  recourse  passes  it  with  all 
its  negotiable  qualities.  Epler  v.  Funic,  8  Penn.  St.  468  ;  Rice 
V.  Stearns,  3  Mass.  225. 

The  indorsement  of  a  bill  or  note  in  blank  or  in  full,  without 
restriction  or  qualification,  passes  the  interest  and  property 
therein  to  the  indorsee.  And  every  such  indorsement  is  an 
undertaking  or  agreement  that  the  bill  or  note  shall  be  duly 
honored,  and  that,  if  it  is  not,  and  the  indorser  has  due  notice 
of  t}ie  dishonor,  he  will  pay  the  am(!>tint  to  the  indorsee.  And 
a  right  of  recovery  accrues  against  the  indorser,  as  soon  as  the 
bill  or  note  becomes  due,  on  compliance  with  the  conditions 
precedent  to  his  liability,  namely,  making  due  presentment  for 
payment,  and  giving  to  the  indorser  due  notice  of  non-payment ; 
or,  in  the  case  of  a  foreign  bill,  having  it  duly  protested,  and 
notice  thereof  given  to  the  antecedent  parties.  Houquette  v. 
Omrmann,  L.  R.,  10  Q.  B.  525.  It  is  not  necessary  that  any 
particular  phraseology  should  be  employed  in  making  an 
indorsement,  which,  in  that  respect,  is  similar  to  the  rule  in  rela- 
tion to  the  words  used  in  the  body  of  the  instrument.  Ante,  538. 
•  An  indorsement  which  is  made  by  merely  writing  the  indorser's 
name  on  the  back  of  the  bill  or  note  is  the  most  concise  contract 
that  can  possibly  be  drawn.  The  word"  indorsement "  imports  a 
writing  upon  the  back  of  the  instrument.  But  the  law  does  not 
regard  the  mere  etymological  signification  of  the  word,  when 
the  object  and  intention  of  the  parties  is  evident.  And,  conse- 
quently, an  indorsement  is  valid  although  written  across  the  face 
of  the  bill  or  note,  instead  of  being  written  on  the  back  of  it. 
Yarborougli  v.  Bank  of  England,  1 6  East,  6  ;  Herring  v.  Wood- 
Jiull,  29  111.  92.  And  the  indorsement  is  equally  valid  if  written 
upon  a  separate  piece  of  paper,  which  is  attached  to  the  instru- 
ment. This  piece  of  paper  is  called  an  allonge,  and  is  consid- 
ered to  be  a  part  of  the  instrument  to  which  it  is  attached. 
French  v.  Turner,  15  Ind.  59  ;  Crosley  v.  Rouh,  16  Wis.  616. 

When  an  indorser  simply  writes  his  name  on  the  back  of  a 
negotiable  bill  or  note,  it  is  called  an  indorsement  in  blank,  or  a 
blank  indorsement.  When  the  indorsement  mentions  the  name 
of  the  person  in  whose  favor  it  is  made,  it  is  called  an  indorse- 
ment in  full,  or  a  full  indorsement.  Each  of  these  modes  of 
indorsement  has  its  advantages,  and  the  indorser  will  follow  that 
mode  which  is  most  likely  to  subserve  the  purposes  for  which 


BILLS  AND  NOTES.  595 

the  indorsement  is  made.  After  an  indorsement  in  full,  no  one 
but  the  indorsee  or  person  to  whom  it  is  ordered  to  be  paid  can 
demand  its  payment ;  and  moreover,  he  himself  cannot  transfer 
the  bill  or  note  as  negotiable  paper  in  any  other  manner  than  by 
adding  his  own  indorsement  in  writing.  Burdlck  v.  Green^  15 
Johns.  247.  This  mode  of  indorsement  is  frequently  adopted 
among  business  men,  to  insure  safety  in  the  transmission  of  ne- 
gotiable paper.  Thus,  whej^e  a  bill  is  drawn  in  Buffalo  on  a 
person  who  resides  in  New  York,  and  it  is  necessary  for  the  payee 
to  send  the  bill  to  New  York  by  mail  for  collection,  he  can  do  so 
without  incurring  any  danger  from  its  being  lost  or  stolen  on  the 
way,  by  indorsing  it  specially  to  the  order  of  his  correspondent 
in  the  city  where  it  is  payable. 

On  the  other  hand,  where  the  payee  of  a  bill  of  exchange,  or 
of  a  negotiable  promissory  note,  indorses  it  in  blank,  the  instru- 
ment is  transferable  by  a  mere  delivery,  for  there  is  no  difference 
between  a  note  indorsed  in  blank  and  one  payable  to  bearer. 
Where  a  bill  or  note  is  indorsed  in  blank,  and  it  is  lost  or  stolen 
during  the  course  of  its  transmission  from  one  place  to  another, 
and  it  is  afterward  transferred  by  the  thief  to  a  bona  fide  holder 
for  value,  he  will  hold  it  in  preference  to  the  owner  who  trans- 
mitted it.  Peacock  v.  Rhodes,  Doug.  633 ;  and  see  Miller  v. 
Race,  1  Burr.  452 ;  1  Smith's  Lead.  Cases,  808-826,  7th  Am.  ed. 
and  authorities  there  cited. 

The  holder  of  a  note  indorsed  in  blank  may  fill  it  up,  before  or 
at  the  trial,  with  what  name  he  pleases.  Williams  v.  Matthews, 
3  Cow.  252  ;  Lonell  v.  EGertson,  11  Johns.  52.  A  full  or  special 
indorsement  is  generally  written  thus,  "pay  A  B,  or  order." 
But  an  indorsement  in  these  words,  "pay  the  within  to  A. 
Thatcher,  value  received,"  has  been  held  not  to  restrict  the  nego- 
tiability of  the  instrument,  though  made  after  it  has  been  dis- 
honored.    Leaviit  v.  Putnam,  1  Sandf.  199  :  S.  C,  3  Comst.  494. 

The  indorsement  follows  the  nature  of  the  original  note,  which 
being  itself  negotiable,  a  direction  by  the  payee  to  pay  it  to  any 
person  named,  is  a  direction  to  pay  it  to  such  person  or  his  order, 
according  to  the  tenor  of  the  note  itself.  lb.  To  render  an 
indorsement  restrictive,  it  is  necessary  that  it  should  contain 
express  words  of  restriction.  lb.  Epler  v.  Frnik,  8  Penn.  St.  468  ; 
Rice  V.  Stearns,  3  Mass.  225.  Where  a  bill  of  exchange  is  sent 
to  an  agent  for  collection,  and  solely  for  that  purpose  it  is 
indorsed  to  snch  agent  in  full,  and  he  returns  it  to  the  owner 
protested,  he  may  strike  out  the  indorsement  and  bring  an  action 


596  BILLS  AND  NOTES. 

on  tlie  note  in  his  own  name.  Chautauqua  Co.  Bauk  v.  Dams^ 
21  Wend.  584 ;  Bank  of  Utica  v.  Smith,  18  Johns.  230.  In  such 
a  case  it  is  not  necessary  that  there  should  be  a  re-indorsement 
by  the  agent.  lb.  The  legal  efl'ect  of  an  indorsement  of  a  prom- 
issory note  in  blank  cannot  be  varied  or  changed  by  a  cotempo- 
raneous  parol  agreement.  Bank  of  Albion  v.  Smith,  27  Barb. 
489  ;  Skillen  v.  Richmond,  48  id.  428.  The  undertaking  of  an 
indorser  may  be  either  limited  or  enlarged,  at  the  time  it  is  en- 
tered into,  by  express  terms,  at  the  pleasure  of  the  indorser.  lb. 
But,  if  no  such  terms  are  expressed  in  the  indorsement,  the  law 
fixes  the  character  of  the  undertaking,  and  it  cannot  be  varied 
by  parol  evidence.  lb.  And,  therefore,  in  an  action  against  an 
indorser,  on  a  blank  indorsement,  the  plaintiff  will  not  be  allowed 
to  prove  that,  at  the  time  the  defendant  sold  and  indorsed  the 
note  to  him,  it  was  agreed  by  parol  that  the  plaintiff  need  not 
make  any  demand  of  the  maker  when  the  note  should  mature, 
but  that  the  defendant  would  be  bound  to  pay  without  such  de- 
mand, lb.;  Seahury  Y.  Hungerford,  2  Hill,  80.  A  verbal  con- 
dition cannot  be  annexed  to  a  promissory  note.  Potter  v. 
Earnest,  45  Ind.  416. 

Where  a  person  indorses  his  name  in  blank  upon  the  back  of 
a  negotiable  note,  his  contract  cannot  be  changed  by  parol  evi- 
dence, so  as  to  charge  him  as  a  guarantor.  lb. ;  Oriswold.  v.  Slo- 
cum,  10  Barb.  402,  and  cases  cited.  But  where  the  indorsement 
is  made  upon  a  note  not  negotiable,  and  the  indorser  cannot  be 
held  liable  in  that  capacity,  he  may  be  charged  as  a  guarantor, 
if  that  was  the  intention  of  the  parties,  at  the  time  when  the 
indorsement  was  made.  lb.  An  indorsement  in  blank  cannot  be 
changed  into  any  other  contract  than  that  of  indorser,  and  the 
indorser  cannot  be  charged  as  maker  of  the  note  nor  as  guarantor. 
Dean  v.  Hall,  17  Wend.  214  ;  Ball  v.  Newcomb,  3  Hill,  233  ;  S. 
C,  7  id.  416 ;  Sedbury  v.  Hungerford,  2  id.  80 ;  Ellis  v.  Brown^ 
6  Barb.  282  ;  Cottrell  v.  Conklin,  4  Duer,  45  ;  Spies  v.  Oilmore, 
1  Comst.  321 ;  Moore  v:  Cross,  19  N.  Y.  (5  Smith)  227,  Where 
one  who  is  not  the  payee  of  a  note  writes  his  name  on  the  back 
of  it  before  its  delivery,  he  is  an  original  promisor,  or  a  surety, 
and  not  an  indorser.  Malbon  v.  Southard,  36  Me.  147 ;  Sargeant 
V.  Bobbins,  19  N.  H.  572;  Tlawkes  \.  Phillips,  7  Gray,  284; 
Perkins  v.  Barstoio,  6  H.  I.  505  ;  Peckham  v.  Oilman,  7  Minn. 
446 ;  Baker  v.  Block,  30  Mo.  229 ;  Carpenter  v.  Oaks,  10  Rich. 
(Law)  17;  Webster  v.  Cobb,  17  111.  459 ;  Cecil  v.  Mix,  6  Ind.  478; 
Fear  v.  Dunlap,  1 G  Greene, 331 ;   Carr  v.  Rowland,    14  Tex. 


BILLS  AND  NOTES.  597 

275  ;  Biggs  v.  Waldo^  2  Cal.  485.  An  indorser  of  a  non-negoti- 
able note  may  be  held  as  guarantor  or  maker.  Richards  v.  War- 
ring, 4  Abb.  Ct.  App.  47 ;  1  Keyes,  576 ;  Griswold  v.  Slocum, 
10  Barb.  402 ;  Cromwell  v.  RewUt,  40  N.  Y.  (1  Hand)  491 ; 
Hougliion  v.  Ely,  26  Wis.  181 ;  7  Am.  Eep.  52. 

Where  a  negotiable  note  is  indorsed  in  blank  by  the  payee,  it 
becomes  assignable  by  delivery,  and  a  subsequent  holder  can 
strike  out  all  the  indorsements  except  the  first  one,  and  make 
title  under  that;  and  he  may  do  this,  notwithstanding  the  bill  or 
note  maj^have  upon  it  subsequent  indorsements  in  full.  Water- 
1)1161  Bank  v.  White,  I  Denio,  608 ;  Bollfus  v.  Frosch,  id.  367 ; 
Pentz  V.  Wiuterhottom,  5  id.  51 ;  Havens  v.  Huntington,  1  Cow. 
387 ;   Williams  v.  Matthews,  3  id.  252. 

So,  when  a  person  indorses  a  bill  of  exchange  to  another, 
whether  for  the  purpose  of  collection  or  for  value,  and  the  bill 
afterward  comes  to  his  possession  again,  he  will  be  regarded  as 
a  hoiia  fide  holder,  unless  the  contrary  shall  appear  in  evidence, 
and  he  is  entitled  to  recover,  notwithstanding  there  may  be  on  it 
one  or  more  indorsements  in  full,  subsequent  to  the  one  to  him, 
without  producing  any  receipt  or  indorsement  back  from  either 
of  such  indorsees,  whose  names  he  may  strike  from  the  bill  or 
note,  as  he  may  think  proper.  Mottram  v.  3fllls,  1  Sandf.  37,  41, 
42 ;  Dagan  v.  United  States,  3  Wheat.  173 ;  N'orris  v.  Badger, 
6  Cow.  449,  455 ;  Dollfus  v.  Frosch,  1  Denio,  367,  373.  The 
paj^ee  or  indorsee  of  a  bill  or  note,  who  has  the  absolute  property 
in  it,  may  make  a  restrictive  indorsement,  which  will  preclude 
the  person  in  whose  favor  it  is  made  from  making  such  a  transfer 
of  it  as  will  give  a  right  of  action  against  either  the  person  making 
the  indorsement  or  any  of  the  antecedent  parties.  Snee  v.  Pres- 
eott,  1  Atk.  245,  249  ;  8igourney  v.  Lloyd,  8  Barn.  &  Cress.  622, 
628;  S.  'C,  5  Bing.  525  ;  Edle  v.  East  India  Co.,  2  Burr.  1227; 
Ancher  v.  Bank  of  England,  Doug.  637  ;  CunUffe\.  Whitehead,  3 
Bing.  N.  C.  828.  An  indorsement  in  the  following  forms  :  "  Pay 
the  contents  to  A  B  only,"  or  "pay  A  B  for  my  use,"  or  ''pay 
A  B  for  my  account,"  prevents  the  bill  from  being  further  trans- 
ferred ;  and  the  indorsement  plainly  shows  that  the  indorser  does 
not  intend  to  part  with  the  absolute  property  in  tlie  bill,  and  that 
the  indorsement  is  a  mere  authority  to  receive  the  money  upon 
the  bill.  lb.  Such  an  indorsement  is  a  full  and  direct  notice  that 
the  indorsee  has  no  title  to  the  bill,  and  that  "he  has  no  right  to 
dispose  of  it.  lb. 

The  owner  or  holder  of  a  bill  or  note  may  transfer  it  absolutely 


598  BILLS  AND  NOTES. 

or  conditionally,  and  when  it  is  transferred  upon  a  condition, 
such  condition  must  be  complied  with  before  the  title  passes. 
Robertson  v.  Kensington^  4  Taunt.  30 ;  Sanders  v.  Bacon,  8 
-  Johns.  485  ;  Tappan  v.  Ely,  15  Wend.  362.  But  a  bill  or  note 
cannot  be  divided  so  as  to  authorize  a  transfer  of  a  part  of  it, 
and  if  only  a  portion  of  it  is  assigned,  no  action  will  lie  by  the 
indorsee  to  recover  such  portion.  Douglass  v.  Wilkeson,  6  id. 
637 ;  S.  C,  22  id.  559 ;  HawTcins  v.  Cardy,  1  Ld.  Raym.  360 ;  S. 
C,  1  Salk.  QiS ;  Miller  v.  Bledsoe,  1  Scam.  530.  If  a  part  of  the 
bill  or  note  has  been  paid,  the  balance  of  it  may  be  assigned.  lb. 
When  the  payee  or  indorsee  of  a  bill  or  note  intends  simply  to 
sell  or  transfer  the  instrument  without  rendering  himself  liable 
thereon  as  indorser,  he  ought  to  state  that  fact  in  the  indorse- 
ment,'which  may  be  done  by  adding  under  his  name,  "  without 
recourse  to  me,"  or  by  employing  any  other  words  which  show 
that  he  does  not  intend  to  incur  any  responsibility.  Guopy  v. 
Harden,  1  Holt's  N.  P.  342  ;  S.  C,  7  Taunt.  160 ;  2  Marsh.  454 ; 
MicTiardson  v.  Lincoln,  5  Mete.  201 ;  Fitchhurg  Bank  v.  Green- 
wood, 2  Allen,  434 ;  Cady  v.  Shepard,  12  Wis.  639 ;  Craft  v. 
Fleming,  46  Penn.  St.  140  ;  see  ante. 

Any  form  of  words  is  sufficient  to  prevent  a  liability  on  the 
part  of  such  indorser,  if  the  language  clearly  shows  that  the 
intention  is  to  avoid  responsibility.  The  addition  of  the  word 
*'  agent,"  or  "treasurer,"  or  "cashier,"  and  the  like,  will  relieve 
such  indorser  from  liability,  if  he  is  known  to  be  acting  as  a 
mere  agent,  or  in  an  official  station,  for  the  advantage  or  on  the 
behalf  of  the  real  party  in  interest.  BdbcocTc  v.  Beman,  UN. 
Y.  (1  Kern.)  200 ;  S.  C,  1  E.  D.  Smith,  593  ;  Mott  v.  Hicks,  1 
Cow.  513  ;  Brockway  v.  Allen,  17  Wend.  40  ;  Hicks  v.  Hinde,  9 
Barb.  528;  Bruce  v.  Lord,l  Hilt.  247;  Horton  v.  Garrison,  23 
Barb ,  176.  An  actual  delivery  ought  to  accompany  the  indorse- 
ment or  transfer  of  a  bill  or  note,  because  there  is  an  important 
legal  presumption  in  favor  of  the  holder  or  pqssessor  of  negotia- 
ble paper,  one  of  which  is,  that  he  is  a  bona  fide  purchaser,  for 
value,  before  the  bill  or  note  became  due.  James  v.  Chalmers,  5 
Sandf.  52;  S.  C,  6  N.  Y.  (2  Seld.)  209 ;  Seeley  v.  Fngell,  17 
Barb.  530  ;  S.  C,  13  N.Y.  (3  Kern.)  642  ;  reversed,  but  upon  another 
point.  When  the  payee  or  indorsee  of  a  bill  or  note  transfers  it 
by  a  mere  delivery,  he  ceases  to  be  a  party  to  the  instrument. 
But  when  he  transfers  it  by  an  indorsement  in  blank,  or  in  full, 
his  liability  is  equivalent  to  making  a  new  note,  or  to  drawing  a 
new  bill.     And  when  the  payee  or  indorsee  of  a  bill  of  exchange 


BILLS  AND  NOTES.  599 

transfers  it  by  an  indorsement  in  blank,  or  in  full,  liis  indorse- 
ment is  a  contract  in  the  nature  of  a  new  drawer,  and  he  is  liable 
to  every  succeeding  holder  in  default  of  acceptance  or  payment 
by  the  drawee.  The  drawee  and  acceptor  is  primarily  liable  upon 
the  bill,  and  the  drawer  and  each  indorser  are  each  liable  collat- 
erally to  the  holder,  provided  those  steps  are  taken  which  the 
law  merchant  requires.  When  the  payee  or  the  indorsee  of  a 
negotiable  note  transfers  it  by  an  indorsement  in  ftill  or  in  blank, 
he  is  liable  to  pay  the  amount  to  every  subsequent  holder  or 
indorsee,  provided  the  maker  does  not  pay  it,  and  a  proper 
demand  is  made,  and  due  notice  of  non-payment  given  to  such 
indorsee.  But  the  indorser  of  a  promissory  note  does  not  stand 
in  the  situation  of  a  maker  relatively  to  his  indorsee.  Gminnell 
V.  Herbert,  6  Ad.  &  Ellis,  436  ;  Bean  v.  Hall,  17  Wend.  214. 
Where  a  party  transfers  a  note  which  is  not  negotiable,  by 
indorsement,  in  payment  of  his  own  debt,  it  is  not  necessary  to 
give  him  notice  of  non-payment  by  the  maker.  Plimly  v.  Westley, 
-2  Bing.  N.  C.  249 ;  Hill  v.  Lewis,  1  Salk.  102  ;  Warring  v. 
Richards,  4  Abb.  Ct.  App.  47  ;  1  Keyes,  576  ;  Cromwell  v.  Hewitt, 
40  N.  Y.  (1  Hand)  491  ;  Houghton  v.  Erly,  26  Wis.  181  ;  7  Am. 
Rep.  52.  It  is  said  that  the  indorser  of  a  note  not  negotiable 
may,  in  such  a  case,  be  treated  as  a  maker  of  a  note.  lb.  How- 
ever that  may  be,  he  is  certainly  liable  on  his  original  indebted- 
ness in  case  the  note  is  not  paid.  Johnson  v.  Gilbert,  4  Hill,  178  ; 
Tyler  v.  Stevens,  11  Barb.  485 ;  Torry  v.  Hadley,  27  id.  192 ; 
Cardell  v.  McNeil,  7  E.  P.  Smith,  336.  An  indorsement  does  not 
become  a  binding  agreement  until  the  delivery  of  it  with  the 
instrument  upon  which  it  is  made.  And  at  any  time  before  deliv- 
ery the  indorser  may  erase  his  signature,  which  will  entirely 
destroy  its  effect  as  an  indorsement.  When  a  note  is  payable 
to  the  order  of  a  person,  and  he  transfers  it  before  maturity,  but 
does  not  indorse  it  until  after  maturity,  the  indorsement  does  not 
relate  back  to  the  time  of  the  transfer,  and  the  transferee  takes 
the  note  subject  to  all  the  equities  between  the  original  parties. 
Lancaster  National  Bank  v,  Taylor,  100  Mass.  IS  ;  1  Am.  Rep. 
71 ;  Clarke  v.  Whitaker,  50  N.  H.  474 ;  9  Am.  Rep.  286. 

An  indorser  is  estopped  from  denying  that  all  indorsements 
prior  to  his  were  made  by  person^  having  competent  authority. 
Magregor  v.  Rhodes,  6  Ell.  «&  Bla.  266. 

And,  in  such  a  case,  the  indorsement  is  always  an  admission 
that  the  prior  indorsements  are  valid.  lb.  and  cases  cited.  An 
indorser  impliedly  warrants  that  the  instrument  is  not  forged, 


600  BILLS  AND  NOTES. 

and  he  is  liable  on  this  warranty  in  case  the  instrument  proves 
to  be  a  forgery.  Herrick  v.  Whitney^  15  Johns.  240  ;  Shaver  v. 
EJile,  16  Johns.  201;  Morrison  v.  Currie,  4  Duer,  79. 

The  indorsement  of  a  promissory  note  imports  a  guaranty  by 
the  indorser,  that  the  makers  are  competent  to  contract  in  the 
character  in  which,  by  the  terms  of  the  paper,  they  purport  to 
contract ;  and,  therefore,  where  a  note  was  void  because  it  was 
made  by  married  women,  the  indorser  of  the  note  was  held 
liable.  Erwin  v.  Downs,  15  N.  Y.  (1  Smith)  575.  Knowledge 
by  the  plaintiff,  at  the  time  he  received  the  note,  that  the  makers 
were  married  women  does  not  affect  his  right  to  recover.  lb.  See 
Remsen  v.  Graces,  41  N.  Y.  (2  Hand)  471 ;  Putnam  v.  Schuyler, 
4  Hun,  166  ;  6  S.  C.  (T.  &  C.)  485 ;  Dalrymple  v.  Hillenbrand,  2 
Hun,  488 ;  5  S.  C.  (T.  &  C.)  57;  62  N.  Y.  (17  Sick.)  5  ;  McLaughlin 
V.  McGonern,  34  Barb.  208.  Where  the  payee  of  a  usurious  note 
indorsed  it  to  a  third  person,  for  a  valuable  consideration,  who 
took  it  without  notice  of  the  usury,  and  afterward  he  brought  an 
action  against  the  payee  seeking  to  charge  him  as  indorser;  it  was 
held  that  the  indorsement  amounted  to  a  new  and  independent 
contract  between  the  parties,  that  the  usury  constituted  no 
defense,  and  that  the  plaintiff  was  entitled  to  recover.  McKnight 
V.  Wheeler,  6  Hill,  492. 

So,  in  an  action  against  the  drawer  of  a  bill  given  for  a  gaming 
debt,  it  is  no  defense  that  the  bill  was  given  for  such  a  debt,  if 
the  bill  was  indorsed  over  by  the  drawer  for  a  valuable  consider- 
ation, to  a  third  person,  by  whom  the  action  is  brought.  Edwards 
V.  Dick,  4  Barn.  &  Aid.  212. 

The  decisions  proceed  upon  the  principle  that  an  indorser  war- 
rants the  genuineness  and  the  title  of  the  paper  which  he  trans- 
fers; and  that,  when  prosecuted  upon  his  contract  of  indorse- 
ment, he  is  estopped  from  denying  the  existence,  the  legality,  or 
the  validity  of  the  contract  which  he  has  assigned,  whenever  he 
seeks  to  escape  from  liability  on  account  of  the  invalidity  of  the 
paper  transferred.  McKnight  \.  TF7z.edZer,  6  Hill,  492;  Edwards 
V.  DicTc,  4  Barn.  &  Aid.  212. 

The  acceptor  of  a  bill  of  exchange  is  presumed  to  know  the 
signature  of  the  drawer,  and  if  a  bill  is  accepted,  the  acceptor  is 
liable  to  a  hona  fide  indorsee  or  holder  for  value,  although  the 
bill  proves  to  be  a  forgery.  National  Park  Bank  v.  Ninth 
National  Bank,  46  N.  Y.  (1  Sick.)  77;  7  Am.  Rep.  310;  Bank  of 
Commerce  v.  Union  Bank,  3  N.  Y.  (3  Comst.)  230 ;  Prices.  Neal, 
3  Burr,  1354;  Smith  v.  Mercer,  6  Taunt.  76  ;  S.  C,  1  Marsh.  453; 


BILLS  AND  NOTES.  601 

Wilkinson  v.  LiLtwldge,  1  Strange,  648 ;  Canal  Bank  v.  Bank 
of  Albany^  1  Hill,  287;  Coggill  v.  American  Exchange  Bank, 
1  Comst.  113.  And  if  the  bill  is  paid,  the  acceptor  cannot  recover 
from  the  holder  or  indorsee  of  the  bill  the  amount  so  paid  him, 
although  the  acceptor  paid  it  on  the  supposition  that  the  signa- 
ture was  valid;  even  though  he  learned  subsequently  to  the  pay- 
ment that  it  was  a  forgery.  lb. 

The  indorser's  contract  to  pay  is  conditional,  and  if  the  maker 
of  the  note  pays  it,  or  he  is  in  any  way  legally  discharged  from 
its  payment,  the  indorser  is  discharged  from  liability.  AVhat 
acts  will  discharge  an  indorser  or  surety  will  be  discussed  here- 
after. Where  there  are  several  indorsers  of  a  bill  or  note,  and 
the  note  or  bill  is  dishonored,  and  due  notice  given,  any  one  of 
the  indorsers  may  take  up  such  bill  or  note,  and  he  can  then 
maintain  an  action  against  anyor  all  of  the  prior  indorsers  to 
recover  the  amount  so  paid  ;  because,  as  between  the  indorsers 
themselves,  the  liability  is  determined  by  the  priority  of  indorse- 
ment. Barker  v.  Cassidy,  16  Barb.  177 ;  Leonard  v.  Barker,  5 
Denio,  220,  223  ;  Bradford  v.  Corey,  5  Barb.  461 ;  Corey  v.  White, 
3  id.  12  ;  Hays  v.  Phelps,  1  Sandf.  64.  A  second  indorser  of 
a  note,  who,  by  mistake  or  inadvertence,  writes  his  name  above 
the  first  indorser,  and  is  called  upon  to  pay  a  portion  of  the  note, 
may  recover  the  amount  so  paid,  from  the  first  indorser.  Slack 
V.  mrk,  67  Penn.  St.  380 ;  5  Am.  Rep.  438. 

The  general  rule  is,  that  a  payee  cannot  recover  against  a  sub- 
sequent indorser.  But  where  a  second  indorser  of  a  note  puts 
his  name  upon  it  in  blank,  with  the  knowledge  that  it  is  to  give 
the  maker  credit  with  the  payee,  he  is  liable  in  an  action  by  the 
payee.  3£oore  v.  Cross,  17  How.  385  ;  S.  C,  19  N.  Y.  (5  Smith) 
227  ;  Waterbury  v.  Sinclair,  26  Barb.  455 ;  S.  C,  16  How.  329  ; 
Coulter  V.  Ri.chmond,  59  N.  Y.  (14  Sick.)  478.  And  parol  evi- 
dence is  admissible  in  this  case  to  show  the  original  consideration 
and  agreement  of  the  parties,  and  that  the  agreement  is  contrary 
to  the  legal  inference  which  arises  upon  the  face  of  the  note.  lb. 
In  such  a  case  the  payee  has  a  right  to  indorse  the  note  without 
recourse,  and  the  court  will  treat  the  note  as  having  been  thus 
indorsed,  whether  it  is  actually  done  or  not.  lb.  A  prior  in- 
dorser cannot  recover  against  a  subsequent  one,  in  the  absence  of 
an  agreement  between  them  ;  but  if  it  is  agreed  between  a  prior 
and  a  subsequent  indorser  that  the  latter  is  to  be  liable  to  the 
former,  tlie  agreement  is  valid  and  will  be  enforced.  Hiibbard 
V.  Matthews,  54  N.  Y.  (9  Sick.)  43  ;  13  Am.  Eep.  562  ;  see  Chad- 

YoL.  L  — 76 


602  BILLS  AND  NOTES. 

dock  V.  Yanness,  35  N.  J.  517 ;  10  Am.  Rep.  256.  If  one  who 
stands  in  the  character  of  second  indorser  upon  a  note  is  not 
made  liable  at  the  maturity  and  non-payment  of  the  note,  no  act 
or  indorsement  of  the  payee,  subsequent  to  the  maturity  of  the 
note,  can  render  the  second  indorser  liable.  Bacon  v.  Burnham, 
87  N.  Y.  (10  Tiff.)  614 ;  5  Trans.  App.  210. 

Where  one  indorses  a  promissory  note  payable  to  another  or 
order,  prior  to  its  delivery  to  the  payee,  in  the  absence  of  proof 
that  he  indorsed  with  intent  to  become  surety  for  the  maker  to 
the  payee,  the  legal  presumption  is  that  he  stands  in  the  position 
of  subsequent  mdorser  ;  and  the  payee  can  neither  maintain  an 
action  upon  the  indorsement,  nor  can  he  transfer  a  right  of  action 
thereon  to  a  purchaser  with  notice,  except  upon  assuming  the 
responsibility  of  first  indorser.  Pliel^s  v.  YiscTier^  50  N.  Y. 
(5  Sick.)  69 ;  10  Am.  Eep.  433. 

Where  the  maker  of  a  note  gives  full  security  to  any  indorser, 
and  he  releases  that  security,  he  will  forfeit  any  right  to  recover 
against  any  prior  indorser.  Fer  Lee  v.  Onderdonk,  19  Barb.  562. 
So,  where  a  creditor  receives  from  his  principal  debtor  collateral 
security  sufficient  to  pay  the  debt,  the  surety  is  discharged  if  the 
security  is  surrendered  without  his  consent.  Pitts  v.  Congdon^  2 
Comst.  352.  But  where  the  holder  of  a  promissory  note  indorses 
and  trahsfers  it  for  value,  in  the  usual  course  of  business,  he  is 
not  a  surety  within  the  meaning  of  this  rule,  and  therefore 
he  will  not  be  discharged,  although  the  indorsee  takes  security 
from  the  maker,  a^nd  afterward  surrenders  it  without  his  con- 
sent, lb. 

.     ARTICLE  VIIL 

LOST  BILLS   ASD   KOTES. 

Section  1.  In  general.  At  common  law,  if  the  owner  of  a  nego- 
tiable bill  or  note  lost  it,  so  that  it  could  not  be  produced  at  the 
trial,  he  could  not  maintain  an  action  upon  it.  Rowley  v.  Ball, 
3  Cow.  303  :  Kirhy  v.  Sisson,  2  Wend.  550  ;  3foses  v.  Trice,  21 
Gratt.  556;  8  Am.  Rep.  609.  And  this  was  the  rule,  even  though 
the  note  was  lost  after  it  became  due.  lb.  But  if  the  bill  or  note 
was  not  negotiable,  or  if  the  evidence  did  not  show  affirmatively 
that  it  was  negotiable,  the  plaintiff  could  recover  upon  it  not- 
withstanding its  loss.  Flntard  v.  TacTclngton,  10  Johns.  104  \ 
McNair  v.  Gilbert,  3  Wend.  344  ;  WrigM  v.  Wright,  54  N.  Y. 
(9  Sick.)  437.    The  wrongful  detention  of  negotiable  paper,  in  a 


BILLS  AND  NOTES.  603 

sister  State,  by  a  person  who  claims  under  a  forged  indorsement, 
does  not,  either  in  equity,  or  under  the  statute  as  to  lost  paper, 
entitle  the  true  owner  to  recover  against  the  drawer,  without  pro- 
ducing the  paper.  Van  'Alstyne  v.  National  Commercial  Bank, 
4  Abb.  Ct.  App.  449  ;  7  Trans.  App.  241. 

In  an  action  upon  a  promissory  note,  made  by  the  defendant, 
and  payable  to  the  plaintiff,  or  bearer,  where  the  note  is  produced 
at  the  trial  by  a  witness  who  claims  to  own  it  as  administrator  of 
an  estate,  the  plaintiff  cannot  recover  although  he  testifies  that 
he  then  owns  the  note,  because  he  has  not  possession  of  the  note, 
and  it  is  not  lost.  Crandall  v.  Schroeppel,  1  Hun,  557  ;  4  S.  C. 
(T.  &  C.)  78.  A  party  paying  a  promissory  note  is  entitled  to 
the  delivery  of  it  on  payment,  or  to  have  it  produced,  that  it 
may  be  discharged,  or  destroyed  in  his  presence.  lb. 

Where  the  inability  to  produce  the  note,  bill,  or  check,  is  caused 
by  the  wrongful  act  of  the  defendant,  the  plaintiff  may  recover 
without  producing  it.  Jolmson  v.  First  National  BaitJc,  6 
Hun,  124. 

In  an  action  upon  a  lost  note,  if  there  is  some  evidence  that  the 
plaintiff  was  the  owner  at  the  time  it  was  lost,  the  question  of 
ownership  is  for  the  jury.  Smith  v.  Toung,  2  Barb.  545.  To 
entitle  one  to  recover  upon  a  negotiable  note,  which  has  been 
lost,  after  being  negotiated,  the  party  must  comply  with  the  pro- 
visions of  the  statute,  under  which  alone  he  can  maintain  an 
action  at  law.  lb. 

To  entitle  a  party  to  recover  on  a  lost  instrument,  the  proof  of 
the  genuineness  of  the  original  must  be  clear  and  satisfactory. 
Slone  V.  Thomas,  12  Penn.  St.  209. 

The  statute  now  makes  provision  for  a  recovery  upon  negotia- 
ble instruments  which  are  lost. 

"In  any  suit  founded  upon  any  negotiable  promissory  note 
or  bill  of  exchange,  or  in  which  such  note,  if  produced,  might 
be  allowed  as  a  set-off  in  the  defense  of  any  such  suit,  if  it 
appear  on  the  trial  that  such  note  or  bill  was  lost  while  it  belonged 
to  the  party  claiming  the  amount  due  thereon,  parol  or  other 
evidence  of  the  contents  thereof  may  be  given  on  such  trial,  and 
notwithstanding  such  note  or  bill  was  negotiable,  such  party 
shall  be  entitled  to  recover  the  amount  due  thereon,  as  if  such 
note  or  bill  had  been  produced."     2  R.  S.  423,  §  75,  Edm.  ed. 

"  But  to  entitle  a  party  to  such  recovery,  he  shall  execute  a 
bond  to  the  adverse  party,  in  a  penalty  at  least  double  the 
amount  of  such  note  or  bill,  with  two  sureties,  to  be  approved 


604  BILLS  AND  NOTES. 

by  the  court  in  whicli  the  trial  shall  be  had,  conditioned  to 
indemnify  the  adverse  party,  his  heirs  and  personal  representa- 
tives, against  all  claims  by  any  other  person  on  account  of  such 
note  or  bill,  and  against  all  costs  and  expenses  by  reason  of 
such  claim."     2  R.  S.  423,  §  76,  Edm.  ed. 

It  has  been  already  seen  that  a  recovery  might  be  had  on  a  lost 
note  vv^iich  was  not  negotiable,  even  before  the  enactment  of 
this  statute.  The  statute  applies,  in  terms,  to  negotiable  instru- 
ments, and  to  no  others.  And  it  provides  for  such  instruments 
in  the  event  of  their  loss,  but  not  in  any  other  case.  It  must  be 
made  to  appear  on  the  trial  that  the  bill  or  note  was  lost  while  it 
belonged  to  the  party  who  claims  the  amount  due  thereon. 
Statute,  §  75,  above  cited. 

So,  too,  it  must  appear  affirmatively  at  the  trial,  that  the  lost 
instrument  was  negotiable,  or  the  plaintiff  may  recover  without 
giving  any  bond  of  indemnity.  McNair  v.  Gilbert^  3  Wend. 
^\.^\  Plntardv.  Taclcington,  10  Johns.  104;  Wrlglit  ■v.'Wrightj 
64  N.  Y.  (9  Sick.)  437.  In  the  absence  of  evidence  upon  the  sub- 
ject, there  is  no  presumption  that  the  note  was  negotiable,  and 
that  fact  must  be  proved.  lb.;  Blade  v.  Noland,  12  Wend.  173. 
"Where  the  instrument  has  been  deliberately  destroyed  by  the 
owner,  he  cannot  recover  upon  it  as  a  lost  bill  or  note.  lb.  In 
an  action  upon  negotiable  paper  which  has  been  lost,  the  giving 
of  the  bond  required  by  the  statute,  with  sufficient  sureties,  and 
conditioned  as  the  statute  requires,  is  an  indispensable  pre- 
requisite to  any  recovery  thereon.  Desmond  v.  Bice,  1  Hilt.  530. 
A  check  is  a  bill  of  exchange  within  this  statute.  Jacks  v.  Dar- 
rin,  1  Abb.  148  ;  S.  C,  3  E.  D.  Smith,  548,  557. 

The  plaintiff  is  entitled  to  recover  although  the  bill  or  note  is 
lost  after  the  action  is  commenced.  lb.  An  action  may  be  main- 
tained by  the  plaintiff  upon  a  promissory  note  which  has  been 
accidentally  destroyed  without  giving  an  indemnity  bond.  Des 
Arts  V.  Leggett,  16  N.  Y.  (2  Smith)  582  ;  S.  C,  5  Duer,  156. 

But  where  it  is  proved  that  the  plaintiff  has  deliberately  and 
voluntarily  burnt  the  note,  he  will  not  be  permitted  to  introduce 
secondary  or  inferior  evidence  of  its  contents.  Blade  v.  Noland^ 
12  Wend.  173.  See  the  general  subject  discussed,  anie^  165, 
166,  167. 

The  statute  was  intended  to  be  an  advantage  to  both  the  maker 
and  the  holder  or  owner  of  a  lost  negotiable  bill  or  note.  Without 
the  aid  of  the  statute  no  action  could  be  maintained  in  a  court  of 
law,  if  the  instrument  was  payable  to  bearer,  or  if  payable  to 


BILLS  AND  NOTES.  605 

order  and  indorsed  in  blank,  or  if  it  was  negotiable  by  mere 
delivery.  The  reason  why  the  plaintiff  was  required  to  produce 
the  note  at  the  trial  was,  that  if  a  recovery  were  permitted  on  it 
without  its  production,  the  maker  might  subsequently  be  required 
to  pay  the  same  note  to  some  other  person  who  was  the  true 
owner  and  possessor,  for  value,  and  in  good  faith,  at  the  time  of 
the  first  recovery. 

To  prevent  this  result,  the  statute  requires  the  plaintiff  to  give 
a  bond  which  will  indemnify  the  maker  against  the  claims  of 
such  bona  fide  holder,  or  of  any  other  person.  And  the  indem- 
nity extends  to  costs  and  expenses  as  well  as  to  the  debt  itself. 

The  statute  makes  no  distinction  between  a  bill  or  note  which 
is  lost  before  it  is  due,  and  one  lost  after  it  is  due.  In  either  case, 
there  must  be  a  bond  given  for  a  full  indemnity  against  the 
demand,  and  for  all  costs  and  expenses  incurred  by  reason  of 
any  claim  made  by  a  third  person.  When  the  plaintiff  can  show 
that  the  maker  cannot  be  put  to  any  loss  on  account  of  the  bill 
or  note,  as  where  it  is  clearly  proved  that  the  instrument  was 
accidentally  destroyed  by  a  fire,  no  bond  of  indemnity  is  required. 
Bes  Arts  v.  Leggett,  16  N.  Y.  (2  Smith)  582  ;  S.  C,  5  Duer,  156. 
Where  a  paid  note  is  of  value  to  the  party  paying  it,  as  a  voucher, 
he  is  entitled  to  have  the  note  delivered  to  him  when  it  is  paid. 
Cahoon  v.  Bank  of  Utica,  7  N.  Y.  (3  Seld.)  486;  Hansard  v. 
Robinson^  7  Barn.  &  Cress.  90.  Where  the  plaintiff  loses  a  bill 
or  note  which  requires  his  indorsement  to  render  it  negotiable, 
he  may  recover  on  it,  or  for  the  original  consideration,  without 
an  indemnity  bond,  if  he  proves  that  the  instrument  had  not 
been  indorsed  by  him  at  the  time  of  its  loss.  Roll  v.  Watson^ 
4  Bing.  273  ;  Long  v.  Bailie,  2  Camp.  214,  in  note  ;  Pintard  v. 
Tackington^  10  Johns.  104.  But  if  it  appears  in  evidence  that  it 
had  been  indorsed  before  its  loss,  an  indemnity  would  be  required. 
'C7iampion  v.  Terry,  3  Brod.  &  Bing.  295. 

Actual  possession  of  the  note  by  the  plaintiff  is  not  important, 
provided  he  is  entitled  to  the  money  due  upon  it.  Selden  v. 
Pringle,  17  Barb.  458. 

In  order  to  charge  the  indorser  of  a  lost  negotiable  promissory 
note,  the  holder  must  tender  an  indemnity  to  both  indorser  and 
maker  at  the  time  of  demand  and  notice,  and  should  the  indorser 
sustain  any  injury  by  reason  of  the  holder's  neglect  in  this  par- 
ticular, it  will  be  a  good  defense  at  the  trial.  Smith  v.  Rockwell^ 
2  Hill,  482.  A  demand  of  payment  of  a  lost  note  will  be  suffi- 
cient without  an  offer  of  a  bond  of  indemnity,  where  it  appears 


606  BILLS  AND  NOTES. 

either  that  the  note  was  not  negotiable,  or  if  negotiable,  that  it  had 
not  been  indorsed.  Bishop  v.  Sniff  en,  1  Daly,  155  ;  see  Miller 
V.   Woods,  21  Ohio  St.  485  ;  8  Am.  Eep.  71. 

This  statute  relates  merely  to  the  remedy  on  lost  negotiable 
bills  and  notes,  and  it  does  not  affect  any  rights  or  liabilities  of 
the  parties  arising  out  of  the  proceedings  to  charge  the  drawers 
or  indorsers.  lb.  If  the  note  or  bill  is  temporarily  lost,  but  it  is 
produced  at  the  trial,  the  plaintiff  may  recover  without  giving  a 
bond  of  indemnity.  lb.  The  loss  of  a  bill  or  of  a  negotiable  note 
does  not  change  the  contract  entered  into  by  the  parties  to  the 
instrument,  in  any  material  particular;  its  only  effect  is  to  give 
the  parties  called  upon  to  pay,  a  right  to  demand  security 
against  any  further  or  different  liability  than  that  which  they 
have  assumed.  The  mode  of  demanding  payment  is  necessarily 
changed,  but  the  act  is  not  dispensed  with.  The  owner  cannot 
present  the  bill  or  note  for  payment  as  the  holder  is  ordinarily 
required  to  do,  but  he  can  make  a  valid  demand  of  payment  by 
tendering  to  the  maker  or  acceptor  a  proper  indemnity,  •  even 
where  he  refuses  to  pay  on  the  ground  that  the  note  is  not 
presented  in  consequence  of  its  loss.  And  the  indorser  cannot 
complain  that  a  demand  of  payment  is  defective,  when  the  law 
declares  that  it  is  legal  and  valid  ;  but  to  charge  him  as  an  in- 
dorser, it  is  in  all  cases  incumbent  on  the  holder  to  give  him 
notice  of  its  dishonor.  In  an  action  on  a  negotiable  promissory 
note,  against  the  makers  and  indorsers,  the  demand  was  made, 
and  notice  of  non-payment  given,  without  any  objection  being 
interposed  by  any  of  the  parties,  on  account  of  the  absence  of 
the  note  ;  no  bond  of  indemnity  was  offered  to  the  makers  or  the 
indorsers,  nor  was  any  requested  by  either  of  them  ;  and  it  did 
not  appear  that  either  of  them  knew  of  the  loss  until  the  suit 
was  commenced,  and  the  note  being  found  before  the  trial,  the 
proceedings  were  held  sufficient  to  charge  the  indorser,  and 
judgment  was  rendered  for  the  plaintiff.  Smith  v.  Rockwell,  2 
Hill,  482. 

It  makes  no  difference  whether  a  bill  or  note  has  been  acci- 
dentally destroyed  or  lost  by  the  owner ;  it  is  necessary  in  either 
case  to  make  a  regular  demand  of  payment  at  the  time  it  becomes 
due,  and  to  give  due  notice  of  the  non-payment  to  the  drawers 
and  indorsers,  in  the  same  manner  as  though  it  had  not  been  lost 
or  destroyed.  Tliaclcray  v.  Blackett,  3  Camp.  163.  Where  the 
holder  of  bank  bills  cuts  them  into  two  parts  for  the  purpose  of 
safe  transmission  by  mail,  he  is  entitled  to  recover  the  amount 


BILLS  AND  NOTES.  607 

of  the  bills  of  the  bank,  when  it  appears  that  the  bills  were 
actually  mailed,  and  that  only  one  set  of  the  halves  came  safely 
to  hand.  Hinsdale  v.  Bank  of  Orange,  6  Wend.  378.  Severing 
the  bills  does  not  destroy  their  negotiability,  so  as  to  prevent  a* 
restoration  by  putting  the  parts  together  again  ;  but,  in  their 
severed  condition,  neither  part  is  negotiable  so  as  to  entitle  any 
person  to  become  a  bona  fide  holder  of  a  separate  half.  And, 
therefore,  the  owner  of  them  is  entitled  to  demand  the  amount 
due  on  the  face  of  the  bills,  in  the  same  manner  as  though  they 
had  been  actually  destroyed,  or  as  though  they  had  not  been 
negotiable.  lb.  If  the  overseer  of  a  bank  bill  accidentally  tears 
it  into  two  nearly  equal  parts,  and  loses  one  of  them,  upon  which 
there  are  no  words  giving  it  a  negotiable  character,  the  bank  will 
be  liable  upon  the  bill.     Martin  v.  Blydenburgh,  1  Daly,  314. 

Where  a  bill  of  exchange,  a  note  or  a  check,  drawn  paj^able 
to  bearer  or  to  order,  and  indorsed  in  blank,  is  lost  or  stolen,  the 
owner  should,  for  his  own  protection,  immediately  give  notice  to 
all  the  parties  not  to  pay  the  money  thereon  to  any  person  but 
himself;  and  he  should  publish  a  notice  as  extensively  as  pos- 
sible in  the  newspapers,  when  that  is  the  most  ready  and  efficient 
mode  of  publication,  cautioning  all  persons  against  taking  or 
buying  the  lost  or  stolen  paper.  The  notice  ought  to  be  explicit 
and. definite  in  its  description  of  the  lost  instrument,  as  to  date, 
amount,  parties,  and  time  when  payable. 

In  the  case  of  an  accepted  bill,  the  acceptor  ought  to  be  forth- 
with notified  not  to  pay  the  bill  to  any  person  but  the  owner ; 
and  in  the  case  of  a  note,  the  same  notice  should  be  promptly 
given  to  the  maker.  So,  in  the  case  of  a  check,  or  of  an  unac-  • 
cepted  draft,  the  drawee  or  the  bank  ought  to  be  directed  not  to 
pay  the  check  in  the  one  case,  nor  to  accept  the  draft  in  the 
other. 

The  title  which  a  bona  fide  purchaser  will  obtain  on  the  pur- 
chase of  a  stolen  bank  bill,  check,  bill  of  exchange  or  negotiable 
promissory  note,  will  be  fully  discussed  in  another  place. 

ARTICLE  IX. 

CONSIDERATIOX   OF  BILLS   AND   NOTES. 

Section  1.  In  general.  This  subject  has  already  been  discussed, 
ante,  in  relation  to  the  necessity  of  a  consideration,  its  suffi- 
ciency, its  validity,  and  its  legality.  There  are  some  cases 
which  may  be  conveniently  and  properly  noticed  in  this  place. 


608  BILLS  AND  NOTES. 

As  between  the  original  parties  to  a  bill  or  note,  there  is  the 
same  necessity  for  a  consideration  that  there  is  in  the  case  of  any 
other  contract  which  they  may  make.    And  between  these  par- 
ties the  question  of  consideration,  either  as  to  its  sufficiency,  va- 
lidity or  legality,  is  always  open  as  a  defense  to  such  bill  or  note. 
If  the  instrument  is  a  negotiable  bill  or  note,  there  is  then  a  legal 
presumption  that  the  consideration  was  sufficient,  and  that  it  was 
valid  and  legal.     This  presumption,  however,  may  be  rebutted. 
But  the  burden  of  proof  is  on  the  defendant,  to  show  the  want  of 
consideration  or  its  illegality.     Clark  v.  Sisson,  22  N.  Y.   (8 
Smith)  312 ;  S.  C,  5  Duer,  468 ;  Bolliday  v.  Atkinson,  5  Barn. 
&  Cress.  501 ;  Safford  v.  Wyckoff,  4  Hill,  442.    Where  the  instru- 
ment is  not  a  negotiable  one,  and  it  does  not  recite  a  considera- 
tion upon  its  face,  as,  "for  value  received,"  or  the  like,  there  is 
no  presumption  of  consideration,  and  one  must  be  proved  on  the 
trial,  as  in  the  case  of  other  contracts.    Ante,  90.    But  there  are  in- 
stances in  which  even  negotiable  paper  is  subject  to  examination 
as  to  its  consideration,  even  as  to  subsequent  indorsees  or  holders. 
Whenever  a  bill  or  note  is  taken  after  it  has  been  dishonored,  it 
is  then  taken  by  the  purchaser  subject  to  every  defense  which 
would  have  been  available  between  the  original  parties  to  it.    But, 
even  in  this  case,  there  is  a  presumption  in  favor  of  the  holder, 
which  is,  that  he  took  the  instrument  before  it  was  due,  and  for 
value.    Ante,  667.    And  this  presumption  must  be  rebutted  before 
the  defendant  will  be  permitted  to  prove  such  a  defense  as  would 
be  available  between  the  original  parties.     Pinkerton  v.  Bailey, 
8  Wend.  600.    There  are  several  cases  in  which  the  consideration 
_  may  be  inquired  into,  although  the  bill  or  note  was  transferred 
before  it  was  due.     And  where  the  purchaser  has  notice  or 
knowledge  of  the  equities  between  the  original  or  prior  parties, 
or  of  the  insufficiency  or  illegality  of  the  consideration,  he  takes 
it  subject  to  all  such  equities,  and  open  to  all  such  defenses. 
Rumsey  v.  Leek,  5  Wend.  20 ;  Skllding  v.   Warren,  15  Johns. 
270;  Small  v.  Smith,  1  Denio,  583;   Sawyer  v.   C7iambers,  44 
Barb.  42  ;   43  id.  622  ;   Van  Yalkeiiburgh   v.  Stuppleheen,   49 
id.  99.    But  if  a  purchaser,  with  notice,  transfers  a  bill  or  note 
before  it  is  due,  to  a  bona  fide  holder,  for  value,  the  latter  may 
recover.    Robinson  v.  Reynolds,  2  Ad.  &  Ell.  (N.  S.)  196.     If  the 
first  indorsee  of  a  promissory  note  acquires  a  right  of  action  as 
against  the  maker,  by  being  a  bona  fide  purchaser  without  notice 
and  before  maturity,  he  can  transfer  a  good  title  as  well  after  as 
before  the  note  became  due.      Woodman  v.  Churchill,  52  Me.  68  ; 


BILLS  AND  NOTES.  609 

Bassett  v.  Avery,  15  Ohio  St.  299  ;  Feabody  v.  Rees,  18  Iowa, 
571.  Where  the  holder  of  a  promissory  note  wliicli  is  invalid 
in  his  hands,  by  reason  of  its  having  been  already  paid,  wrong- 
fully transfers  it,  before  maturity,  to  a  bona  fide  holder,  who 
enforces  payment  thereof,  an  action  will  lie  against  such  original 
holder,  by  the  maker,  to  recover  back  the  amount.  Newell  v. 
Gregg,  51  Barb.  263  ;  see  Goleman  v.  Lansing,  4  Lans.  70. 

There  are  several  legal  presumptions  in  favor  of  negotiable 
paper,  which  are  designed  to  facilitate  the  use  and  negotiation  of 
commercial  paper.  It  is  presumed,  until  the  contrary  appears, 
that  every  negotiable  bill  or  note  is  founded  upon  a  sufficient 
legal  consideration ;  that  the  holder  and  possessor  of  a  bill  or 
note  is  the  true  owner  ;  that  indorsed  paper  was  indorsed  before 
it  became  due ;  that  the  holder  of  a  bill  or  note  took  it  in  the 
usual  course  of  business  for  value ;  that  the  maker  of  a  note  is 
the  primary  debtor,  and  that  the  acceptor  of  a  bill  of  exchange 
is  primarily  liable  thereon.  These  presumptions,  which  are  in- 
dulged for  the  advantage  of  commercial  interests  and  intercourse, 
are  not  conclusive,  but  are  liable  to  be  rebutted  by  proof  that  the 
facts  are  different  from  the  legal  presumption.  But  the  burden 
of  proof  lies  upon  the  party  who  wishes  to  rebut  the  presumption  ; 
and  in  the  absence  of  proof  sufficient  to  overcome  these  presump- 
tions, they  will  stand  as  facts  established.  It  is  a  general  rule 
that  parol  evidence  is  not  admissible  to  control  or  to  contradict 
a  written  instrument.  See  title  Evidence.  This  rule  is  equally 
applicable  to  bills  and  notes.  And,  for  that  reason,  parol  evi- 
dence is  not  admissible  to  show  that  a  chattel  note,  whicn  was 
payable  absolutely,  was  given  upon  an  oral  agreement  that  the 
note  was  to  be  void  upon  the  happening  of  a  specified  event. 
Erwin  v.  Sanders,  1  Cow.  249  ;  Ely  v.  Kllhorn,  5  Denio,  51.4 ; 
or  that  it  was  to  have  no  validity  except  upon  the  happening  of 
a  certain  event.  Payne  v.  Ladue,  1  Hill,  116  ;  Brown  v.  Hull, 
1  Denio,  400  ;  or  that  there  is  a  mistake  as  to  the  time  of  pay- 
ment mentioned.  Fllzhugh  v.  Runyon,  8  Johns.  375  ;  Thomp- 
son V.  Ketcham,  id.  190  ;  or  that  a  note  was  to  be  renewed  and 
not  demanded  when  due.  Hoare  v.  Graham,  3  Camp.  57.  But 
where  a  note  was  given  for  $1,033.88,  on  the  purchase  of  a  quan- 
tity of  growing  grain,  estimated  to  be  one  hundred  and  live  acres, 
at  $9.75  an  acre,  and  there  was  an  oral  agreement  at  the  time  of 
giving  the  note,  that  the  land  should  be  measured,  and  if  the 
quantity  of  land  was  less  than  that  assumed,  then  there  was  to 
be  a  reduction  of  the  amount  to  correspond  with  the  sum  which 

Vol.  L  — 77 


610  BILLS  AND  NOTES. 

would  be  due  on  such  measurement,  it  was  held  that  the  oral 
agreement  was  valid,  and  that  there  could  be  no  recovery  for  any 
amount  beyond  that  wliich  would  be  due  upon  such  measure- 
ment. Garter  v.  Hamilton^  3  Clint.  Dig.  2754,  No.  87,  reversing 
same  case  in  11  Barb.  147. 

It  has  been  held,  however,  that  where  a  promissory  note  is 
given  for  a  definite  sum,  no  oral  evidence  is  admissible  to  show 
that  at  the  time  of  giving  the  note,  it  was  agreed  between  the  par- 
ties that  an  account  which  the  maker  held  against  the  payee 
should  be  deducted.     Baves  v.  Henderson,  17  Wend.  190. 

But  although  parol  evidence  is  not  admissible  as  a  general  rule, 
for  the  purpose  of  establishing  that  there  was  an  oral  agreement 
which  contradicts  the  written  instrument ;  yet  it  is  competent  to 
show,  by  parol  evidence,  that  the  note  was  obtained  by  fraud ; 
or  that  there  was  a  mistake  made  in  it  as  to  the  amount  due,  if 
such  defense  is  offered  in  an  action  between  the  original  parties 
to  the  note  ;  or  in  an  action  by  those  who  have  taken  it  before 
due  with  notice  ;  or  as  against  a  holder  who  has  taken  it  after  it 
was  dishonored.  Ante,  437.  There  may  be  oral  agreements  in 
relation  to  the  execution  and  delivery  of  bills  and  notes  which 
will  defeat  a  recovery  upon  them.  Where  a  party  signs  a  prom- 
issory note  on  condition  that  another  person  shall  also  sign  it, 
above  his  signature,  he  is  not  liable  upon  the  note  unless  the  con- 
dition is  complied  with.  And  a  party  suing  upon  such  note  is 
bound  to  show  how  it  came  into  his  hands  without  a  compliance 
with  the  condition.  Miller  y.  Oamhie,  4  Barb.  146  ;  Ely  v.  Kil- 
horn,  5  Denio,  514  ;  Awde  v.  Dixon,  6  Exch.  869. 

So  the  drawer  of  a  bill  cannot  maintain  an  action  upon  it 
against  the  drawee,  who  has  accej)ted  it  for  his  accommodation. 
Reynolds  v.  Doyle,  1  Man.  &  Grang.  753 ;  Sparrow  v.  Chisman^ 
9  !Barn.  &  Cress.  241  ;  Thompson  v.  Gluhley,  1  Mees.  &  Wels.  212. 
Where  a  note  is  indorsed  for  the  accommodation  of  the  maker, 
or  a  bill  is  accepted  for  the  accommodation  of  the  drawer,  witli- 
out  any  restriction,  and  it  is  negotiated  to  a  third  person,  who 
pays  value  for  it,  the  party  receiving  it  is  entitled  to  recover 
upon  it,  against  such  indorser  or  acceptor,  notwithstanding  the 
purchaser  took  it  with  full  knowledge  that  it  was  accommoda- 
tion paper.  Ross  v.  Bedell,  5  Duer,  462,  467 ;  Grant  v.  ElUcott,  7 
Wend.  227 ;  Smith  v.  Knox,  3  Esp.  46 ;  Gommercial  Bank  v. 
Norton,  1  Hill,  501. 

But  where  it  is  shown  that  the  bill  or  note,  in  respect  to  the 
defendant  in  the  action,  was  fraudulently  put  into  circulation  or 


BILLS  AND  NOTES.  611 

negotiated,  or  that  it  was  lost  or  stolen,  tlie  plaintitf  is  not  enti- 
tled to  recover  without  proof  that  he  parted  with  value  for  it 
when  it  came  into  his  hands.  Hoss  v.  Bedell,  5  Duer,  462,  467; 
Berry  v.  Alderman,  5  J.  Scott  (14  C.  B.),  95;  Smith  v.  Braine, 
16  Ad.  &  E.  (N.  S.)  244 ;  Bailey  v.  Bid  well,  13  Mees.  &  Wels.  76; 
Harmy  v.  Towers,  6  Exch.  656;  May  v.  Seyler,  2  id.  563,  566; 
Edmunds  v.  Groves,  2  Mees.  &  Wels.  642. 

So,  where  an  accommodation  bill  or  note  is  made  for  a  special 
purpose  —  such,  for  instance,  as  to  enable  the  maker  to  obtain  a 
discount  at  a  particular  bank,  or  to  raise  money  in  a  given  way 
to  pay  a  certain  draft,  the  maker  has  no  right  to  use  the  note  in 
any  other  way;  and  if  he  does  so,  it  is  a  fraudulent  diversion  of 
the  note  from  its  original  object  and  design ;  and  if  the  person 
who  received  it  from  the  maker  knew  the.  circumstances  and  the 
terms  upon  which  such  indorsement  was  made,  or  if  he  is 
chargeable  with  notice  thereof,  he  cannot  recover  on  it  against 
the  indorser.  Kasson  v.  Smith,  8  Wend.  437;  Broion  v.  Taber, 
5  id.  566;  Denniston  v.  Bacon,  10  Johns.  198;  Skilding  v.  War- 
ren, 15  id.  270;  Rochester  v.  Taylor,  23  Barb.  18 ;  Prall  v. 
Ilinchman,  6  Duer,  351;  Farrington  v.  FranJifort  Bank,  31 
Barb.  183;  24  id.  554. 

But,  although  negotiable  paper  is  diverted  from  the  purpose 
for  which  it  was  made,  a  bona  fide  holder,  for  value,  may  recover 
upon  it.  Ayrault  v.  McQueen,  32  Barb.  305;  Small  v.  Smithy  1 
Denio,  583;  Boyd  v.  Cummings,  17  N.  Y.  (3  Smith)  101;  Park 
BankY.  Watson,  42  N.  Y.  (3  Hand)  490;  1  Am.  Rep.  573.  A 
surrender  by  a  creditor  to  his  debtor  of  a  security  sufficient  to 
have  paid  the  debt  due  to  the  former,  is  a  sufficient  payment  of 
value  to  constitute  a  valid  purchase.  Ayrault  v.  McQueen,  32 
Barb.  305.  One  who  takes  a  note  before  its  maturity  in  payment 
of  a  note  already  due,  is  a  holder  for  value.  Broion  v.  Leavitt, 
31  N.  Y.  (4  Tiff)  113;  Mechanics  and  Traders'  National  Baiik 
V.  Crow,  60  N.  Y.  (15  Sick.)  85.  So,  whenever  a  creditor  surren- 
ders up  an  existing  note,  and  receives  in  exchange  such  accom- 
modation note,  in  good  faith,  this  is  paying  value  for  it,  so  as  to 
render  the  accommodation  indorser  liable  to  pay  the  note. 
Youngs  v.  Lee,  12  N.  Y.  (2  Kern.)  551;  Seneca  County  Banli  v. 
Neass,  3  Comst.  443;  Stettheimer  v.  Meyer,  33  Barb.  215;  Lathrop 
V.  Morris,  5  Sandf.  7;  White  v.  Springfield  Bank,  3  id.  222. 
And  it  makes  no  difference  whether  the  note  surrendered  was 
due,  or  not  due,  at  the  time  of  giving  it  up  in  exchange  for  the 
substituted  note.    Stettheimer  v.  Meyer,  33  Barb.  215;   Youngs 


612  BILLS  AND  NOTES. 

V.  Lee,  12  N.  Y.  (2  Kern.)  551;  S.  C,  18  Barb.  187;  Curra  v. 
Mlsa,  L.  R.,  10  Excli.  153 ;  12  Eng.  Rep.  592,  608-616,  note. 

So,  where  an  accommodation  note  is  received  by  a  creditor  as 
payment  of  a  debt  or  an  account  against  his  debtor,  and  the 
amount  is  credited  to  him,  or  a  receipt  is  given  for  the  amount, 
this  is  paying  value  so  as  to  enable  the  creditor  to  recover  on  tlie 
note  against  the  accommodation  maker  or  indorser.  Purchase 
V.  Mattison,  3  Bosw.  310;  S.  C,  6  Duer,  588;  De  Zeng  v.  Fyfe, 
1  Bosw.  335 ;  see,  however.  Spear  v.  Myers,  6  Barb.  445.  But 
when  a  creditor  receives  such  accommodation  note  as  a  collateral 
security,  and  not  as  a  payment  of  the  debt  due  to  him,  he  is  not 
a  holder  for  value,  and  he  cannot  recover  against  such  accommo- 
dation maker  or  indorser.  White  v.  Springfield  Bank,  3  Sandf. 
222;  S.  C,  1  Barb.  225;  Goldsmid  v.  Lewis  County  Bank,  12 
Barb.  407;  Clarke  National  Bank  v.  Bank  of  Albion,  52  id.  592. 
But,  in  Maryland  it  is  held  that  one  who  receives  an  accommo- 
dation note  as  collateral  security  for  an  antecedent  debt,  without 
other  consideration,  is  a  holder  for  value  within  the  rule  of  pro- 
tection against  antecedent  equities.  Maitland  v.  Citizens''  Na- 
tional Bank  of  Baltimore,  40  Md.  540;  17  Am.  Rep.  620,  628 
and  cases  cited. 

A  promissory  note  was  indorsed  for  the  accommodation  of  the 
maker,  and  was  transferred  by  him  before  maturity  to  a  judg- 
ment creditor  as  security  for  the  payment  of  his  judgment,  and 
irl'^  consideration  of  the  discontinuance  of  proceedings  supple- 
mentary to  the  execution  then  pending  against  the  maker;  such 
discontinuance  was  held  to  make  the  creditor  a  holder  for  a  val- 
uable consideration,  and  that,  not  having  any  notice  of  any 
restriction  imposed  upon  the  maker  as  to  the  use  to  be  made  of 
the  note,  he  could  recover  against  the  indorser.  Boyd  v.  Cum- 
mings,  17  N.  Y.  (3  Smith)  101. 

The  drawer  of  an  accommodation  check  cannot  set  up  any 
other  defense  against  a  bona  fide  holder  than  would  be  competent 
to  him  had  he  delivered  the  check  for  value.  Harbeck  v.  Craft, 
4  Duer,  122.  So,  the  maker  of  a  promissory  note  for  the  accom- 
modation of  the  payee  cannot  set  upas  a  defense,  in  cases  exempt 
from  fraud,  that  the  note  was  transferred  to  the  plaintiff,  in  satis- 
faction of  a  pre-existing  debt,  or  that  it  was  taken  as  a  collateral 
security  therefor.  De  Zeng  v.  Fyfe,  1  Bosw.  335  ;  Lathrop  v. 
Morris,  5  Sandf.  7;  Bank  of  Rutland  v.  Buck,  5  Wend.,  66; 
Orandin  v.  Le  Roy,  2  Paige,  509.  There  is  a  distinction  which 
ought  to  be  observed  in  relation  to  these  notes.    Where  a  note  or 


BILLS  AND  NOTES.  613 

bill  is  made  for  the  accommodation  of  an  individual,  and  there  is 
no  restriction  as  to  the  use  which  he  is  to  make  of  it,  such  indi- 
vidual may  get  it  discounted  for  cash,  or  he  may  pay  an  old  debt 
with  it,  or  he  may  turn  it  out  as  security  for  the  payment  of  an 
old  debt,  and  tlie  creditor  may  recover  upon  it  as  against  such 
maker  or  indorser. 

But  where  the  note  is  made  for  a  special  purpose,  and  it  is 
diverted  from  that  purpose,  and  the  creditor  receives  it  with 
notice  of  that  fact,  or  he  receives  it  as  a  mere  collateral  security 
of  a  debt  due  to  him,  he  cannot  recover  against  such  accommo- 
dation maker  or  indorser ;  though,  as  we  have  seen  above,  tlie 
creditor  may  recover  upon  the  note,  if  he  has  received  it  abso- 
lutely in  payment. 

Upon  grounds  of  public  policy  growing  out  of  commercial 
convenience  or  necessities,  a  holder  of  negotiable  paper  may, 
under  certain  circumstances,  recover  upon  it,  notwithstanding 
any  defect  in  the  title  of  the  person  from  whom  he  derived  it; 
even  though  such  person  may  have  obtained  or  acquired  it  by 
fraud,  theft,  or  robbery.  Hall  v.  Wilson,  16  Barb.  548  ;  Stalker 
V.  McDonald,  6  Hill,  93;  Miller  v.  Race,  1  Burr.  452,  and  1 
Smith's  Lead.  Cas.  808-826,  7th  Am.  ed.,  where  numerous  cases 
are  collected.  But  this  rule  does  not  apply,  where  negotiable 
securities  have  been  obtained  and  put  into  circulation  fraudu- 
lently, feloniously,  or  without  consideration,  unless  the  person 
who  has  them  became  a  holder  thereof  in  good  faith,  for  a  full 
and  fair  consideration,  in  the  usual  course  of  business,  and  with- 
out notice  of  the  invalidity  of  the  title.  lb.  W.  made  a  promis- 
sory note  for  $120,  payable  to  U.,  or  bearer.  The  note  was  never 
delivered,  but  was  placed  by  the  maker  in  his  desk  as  a  place  of 
deposit,  from  whence  it  was  stolen  by  B.,  a  laborer  in  his  employ, 
and  was  by  him  transferred,  to  one  Bigelowfor  $115.  Before  the 
note  became  due,  Bigelow  transferred  it  to  the  plaintiff;  audit 
was  held  that  he  could  not  recover  upon  it,  because  the  note 
never  had  a  legal  inception,  for  want  of  a  delivery  ;  that  the 
transfer  to  Bigelow  was  void  for  usury  ;  and  also  because  the 
note  was  not  taken  by  him  bona  fide,  for  a  full  and  fair  consid- 
eration, in  the  usual  course  of  business.  Hall  v.  Wilson,  16 
Barb.  548.  A  note  to  be  the  subject  of  sale  must  be  a  valid 
note  in  the  hands  of  the  payee,  and  be  given  for  some  actual 
consideration,  so  that  it  can  be  enforced  between  the  original 
parties,  and  if  not  valid  in  the  hands  of  the  payee,  it  cannot  be 
rendered  valid  by  a  sale  to  a  bona  fide  purchaser  at  a  rate  of 


614  BILLS  AND  NOTES. 

interest  exceeding  seven  per  cent.  Sweet  v.  Chapman^  7  Hun, 
576.  But  where  negotiable  paper  has  been  once  properly  deliv- 
ered, the  maker  or  acceptor  may,  in  some  cases,  be  held  liable, 
altliough  such  instrument  is  subsequently  put  into  circulation 
fraudulently  or  feloniously,  A.  accepted  a  bill  of  exchange  and 
gave  it  to  B.,  vv^ho  put  his  name  thereto  as  drawer,  for  the  pur- 
pose of  having  it  discounted  and  the  proceeds  paid  over  to  A. 
B.  attempted,  but  unsuccessfully,  to  get  the  bill  discounted,  and 
he  then  returned  it  to  A.,  who  tore  the  bill  into  two  pieces,  and 
threw  them  away  into  the  street,  intending  to  cancel  it,  as  the 
jury  found  upon  proper  evidence.  B.  picked  them  up  in  A.'s 
presence,  and  afterward  pasted  the  two  pieces  together,  and  put 
the  bill  in  circulation.  The  tearing  of  the  bill  was  done  in  such 
a  way  that  the  appearance  of  the  bill  was  as  consistent  with  its 
having  been  divided  for  safe  transmission  by  mail,  as  with  its 
having  been  torn  for  the  purpose  of  destroying  it,  and  it  was 
held  that  A.  was  liable  upon  it  at  the  suit  of  a  bona  jide  holder 
without  notice.  Ingham  v.  Primrose,  7  C.  B.  (N.  S.)  82.  So, 
where  a  money  changer  at  Paris,  twelve  months  after  he  had 
received  notice  of  a  robbery  of  bank  notes  at  Liverpool,  took 
one  of  the  stolen  notes,  for  live  hundred  pounds,  at  Paris, 
giving  cash  for  it,  less  the  current  rate  of  exchange,  from  a 
•stranger,  whom  he  merely  required  to  produce  his  passport  and 
write  his  name  on  the  back  of  the  note,  it  was  held  that  the  cir- 
cumstance of  his  forgetting  or  omitting  to  look  for  the  notice 
was  no  evidence  of  bad  faith,  and  that  the  bank  was  liable  to  the 
plaintiff  for  the  amount  of  the  bill.  Raphael  v.  Bank  of  Eng- 
land, 8.  J.  Scott  (17  C.  B.),  160,  where  the  English  cases  are  fully 
reviewed.  One  who  takes  a  bank  note,  or  other  negotiable 
security,  bona  fide,  that  is,  giving  value  for  it,  and  having  no  no- 
tice at  the  time  that  the  party  from  whom  he  takes  it  has  no  title, 
is  entitled  to  recover  upon  it,  even  although  he  may  at  the  time 
have  had  the  means  of  knowledge  of  the  fact,  of  which  means 
he  neglected  to  avail  himself.  lb.  The  old  established  rule  of 
law  that  the  holder  of  bills,  bank  notes,  etc.,  can  give  a  title 
wliich  he  does  not  possess,  to  a  person  taking  them  bona  fide  for 
value,  is  not  to  be  qualitied  by  treating  it  as  essential  that  the 
person  should  take  them  with  due  care  and  caution  ;  except  so 
far  as  the  want  of  such  care  and  caution  may  affect  the  bona 
fides  and  honesty  of  the  transaction.  Stelnhart  v.  BoJcer,  34  Barb. 
436  ;  Seijbel  v.  National  Currency  Bank,  54  N.  Y.  (9  Sick.)  288; 
Ooodman  v.  Sinionds,  20  IIow.  (U.  S.)  343;  Murray  v.  Lardner^ 


BILLS  AND  NOTES.  615 

2  Wall.  110  ;  Harrison  v.  Vouglit,  84  N.  J.  (Law)  187 ;  PJielan 
V.  MosSy  67  Peiin.  St.  59  ;  5  Am.  Rep.  402  ;  Taylor  v.  Atkinson^ 
54  111.  196  ;  Comstock  v.  Hannah,  76  id.  530;  iya^-e  v.  ^ee(^,  29 
Jjwa,  258  ;  4  Am.  Rep.  209. 

Where  there  is  a  total  want  of  consideration  for  a  promissory 
note,  bill  of  exchange,  or  check,  that  fact  may  always  be  shown 
to  defeat  a  recovery  thereon,  if  the  defense  is  interposed  while 
the  matter  is  between  the  original  parties.  So,  between  the  im- 
mediate parties  to  a  bill,  note,  or  check,  it  will  always  be  a  good 
defense  to  show  that  the  instrument  was  obtained  by  duress,  by 
fraud,  by  false  pretenses,  or  while  the  defendant  was  in  a  state  of 
complete  intoxication,  or  it  may  be  shown  that  the  note  was 
deposited  as  an  escrow,  and  that  it  was  delivered  in  violation  of 
that  agreement,  or  that  the  note  was  not  to  become  operative 
until  a  specified  condition  has  been  performed.  Ante,  438;  Moore 
v.  Cocker  oft,  4  Duer,  133. 

No  action  can  be  maintained  upon  a  note  which  was  obtained 
by  the  fraud  of  the  payee  and  holder.  Barber  v.  Kerr,  3  Barb. 
149 ;  Walker  v.  Sqtdres,  Hill  &  Denio,  23  ;  New  York  and  Vir- 
ginia, etc.,  Bank  v.  Gihson,  5  Duer,  574  ;.  Linn  Rock  Bank  v. 
Hewett,  50  Me,  267. 

If  a  promissory  note  is  given  to  a  vendor  on  the  sale  of  goods 
and  chattels,  and  he  fraudulently  represented  the  goods  to  be  of 
great  value,  when  they  were  in  fact  worth  nothing,  the  vendor 
cannot  maintain  an  action  upon  such  note.  Sill  v.  Rood,  15 
Johns.  230 ;  Sheplierd  v.  Temple,  3  N.  H.  455.  If  the  vendor 
was  guilty  of  a  fraud  in  obtaining  the  note  by  a  fraudulent  sale 
of  goods,  or  by  perpetrating  any  other  fraud  upon  the  maker  of 
the  note,  such  vendor  cannot  recover  upon  the  note.  And  in 
such  cases  of  fraud  the  purchaser  need  not  offer  to  return  the 
goods  in  order  to  maintain  his  defense,  if  he  can  show  that  the 
goods  are  of  no  value  whatever.  Burton  v.  Stewart,  3  Wend. 
ii36. 

But,  in  ordinary  cases,  if  the  goods  are  of  any  value,  the  pur- 
chaser ought  to  return,  or  offer  to  return,  them  to  the  vendor,  if 
he  would  make  a  complete  defense  to  an  action  upon  the  note, 
lb.  The  purchaser  may,  however,  retain  the  property,  and  if 
there  was  a  fraud  or  a  warranty  in . relation  to  the  sale  of  the 
goods  which  constitutes  the  consideration  of  the  note,  he  may, 
as  against  the  vendor,  if  he  sues  upon  the  note,  recoup  the 
damages  arising  from  the  fraud  or  warranty,  and  thus  diminish 
the  amount  of  the  recovery  upon  the  note.     Wlien  it  is  import- 


016  BILLS  AND  NOTES. 

ant  to  rescind  a  contract,  the  law  must  be  complied  with.  See 
Rescission. 

Where  a  bill  is  accepted,  or  a  promissory  note  is  given,  and  the 
consideration  for  such  bill  or  note  is  an  executory  promise  of 
the  drawer  of  the  bill,  or  the  maker  of  the  note,  to  do  some 
future  act,  such  consideration  is  sufficient  to  render  the  instru- 
ment valid  in  the  hands  of  one  who  paid  full  value  for  it, 
although  he  knew  of  the  agreement,  but  did  not  know  of  the 
breach  thereof,  at  the  time  of  his  purchase.    Davis  v.  McCready, 

17  N.  Y.  (3  Smith)  230,  232.  "  If  one  will  issue  his  negotiable 
paper  and  send  it  into  the  world,  in  consideration  of  an  engage- 
ment of  the  party  with  whom  he  deals  to  do  some  act  for  his 
benefit  in  future,  he  declares  in  effect  that  he  will  pay  the  note 
or  bill  according  to  its  terms  to  any  one  who  shall  become  the 
holder,  for  value,  in  the  course  of  business,  and  rely  for  his  own 
indemnity  upon  the  promise  he  has  received  as  the  considera- 
tion for  issuing  it."  lb.,  Denio,  J. 

Before  an  action  upon  a  bill  or  note  can  be  defeated  entirely 
and  absolutely,  it  must  be  shown  that  it  was  obtained  by  fraud, 
or  that  the  consideration  is  illegal,  or  that  there  never  was  any 
consideration  whatever,  or  that  if  there  once  was  a  consideration 
that  it  has  totally  failed.  If  there  is  any  consideration  whatever 
that  will  be  sufficient  to  sustain  the  action.  And  where  a  vendor 
sells  goods  or  chattels  without  warranty,  and  without  any  fraud 
on  his  part,  he  may  recover  upon  a  promissory  note  given  for 
the  purchase  price,  although  the  article  sold  turns  out  to  be  a 
different  one  from  what  it  was  supposed  to  be,  and  although  it  is 
nearly  worthless.  Welsh  v.  Carter,  1  Wend.  185 ;  Johnson  v. 
Titus,  2  Hill,  606. 

Mere  inadequacy  of  consideration  is  no  defense  to  a  bill  or 
note,  though  a  total  want  or  failure  of  consideration  is  a  full 
defense,  and  a  partial  failure  thereof  is  a  good  defense  so  far  as 
it  is  proved.  The  general  rule  is,  that  no  action  will  lie  upon  a 
bill  or  note  founded  upon  an  illegal  consideration  as  between  the 
original  parties  to  it.  So  it  is  a  general  rule  that  when  a  nego- 
tiable instrument  has  passed  into  the  hands  of  a  bona  fide 
holder,  for  value,  in  the  ordinary  course  of  business,  he  may 
recover  upon  it.  There  are  some  exceptions  to  the  latter  rule  in 
those  cases  in  which  the  statute  declares  the  note  void,  as  in 
cases  of  usury.     See  Illegality. 

No  person  is  considered  to  be  a  bona  fide  holder  of  negotiable 
paper  unless  he  acquires  it  before  it  becomes  due,  in  good  faith, 


BILLS  AND  NOTES.  617 

and  fbr  value.  If  a  bill  or  note  is  dishonored  by  its  non-pay- 
ment, this  is  sufficient  to  put  a  person  who  proposes  to  take  it 
upon  his  guard,  and  to  require  him  to  make  inquiries  about  it. 
If  he  takes  it  without  such  inquiry,  he  will  take  it  subject  to  all 
the  equities  existing  against  it,  and  his  only  remedy  will  be 
against  the  person  transferring  the  paper  to  him.  Farrington 
V.  Parli  Baiik^  39  Barb.  645.  A  holder  of  negotiable  paper  in 
good  faith  is  one  who  purchases  or  receives  it  without  notice  or 
knowledge  of  the  facts  or  circumstances  which  tend  to  impeach 
its  validity,  or  to  diminish  the  amount  recoverable  upon  it.  If 
a  person  takes  negotiable  paper  before  it  is  due,  but  with  full 
knowledge  of  the  facts  and  circumstances  which  impeach  its 
validity,  he  cannot  recover  upon  it,  although  he  paid  full  value 
for  it.  So,  in  every  case,  the  holder  of  a  bill  must  have  given 
value  for  it,  if  he  would  avoid  existing  equities,  even  when  taken 
before  due.  And  when  the  holder  claims  to  hold  negotiable 
paper  as  against  the  true  owner,  from  whom  it  has  been  stolen, 
he  must  always  show  liiiuself  to  be  a  purchaser  in  good  faith 
and  for  value. 

Accommodation  paper  stands  upon  grounds  somewhat  difier- 
ent  from  other  negotiable  instruments.  If  an  accommodation 
bill  or  note  is  made  and  put  into  circulation,  the  holder  who  has 
advanced  the  money  upon  it  may  recover  upon  it  against  any  of 
the  parties  to  it,  notwithstanding  there  was  no  consideration  for 
it,  as  between  the  parties  to  it,  and  although  no  action  could 
liave  been  maintained  upon  it  between  the  original  parties. 
When  paper  of  that  kind  is  put  into  circulation  it  is  both  a 
request  to  advance  the  money  upon  it  and  a  promise  to  repay 
the  amount  so  advanced,  and  this  is  a  sufficient  consideration  to 
bind  any  one  whose  name  is  upon  the  instrument  as  a  party  to 
it.  Ante^  92, 100.  The  person  for  whose  accommodation  a  promis- 
sory note  is  made  or  indorsed,  or  for  whom  a  bill  of  exchange  is 
accepted,  is  bound  to  indemnify  the  maker,  indorser  or  acceptor, 
as  the  case  may  be.  Wright  v.  OarllngJiouse,  26  N.  Y.  (12 
Smith)  539,  reversing  S.  C,  27  Barb.  474  ;  Suydam  v.  West/all, 
2  Denio,  205. 

The  person  for  whose  benefit  an  accommodation  bill  or  note 
has  been  made  can  never  recover  upon  it  as  against  any  of  the 
persons  who  made,  indorsed  or  accepted  such  paper  for  his  use 
and  benefit.  TJiurman  v.  Van  Brunt,  19  Barb.  409.  In  the 
case  of  an  accommodation  bill,  the  acceptance  is  iDrlma  facie 
evidence  that  the  acceptor  has  funds  of  the  drawer  in  his  hands; 

Vol.  L  — 78 


618  BILLS  AND  NOTES. 

but  this  presumption  may  be  rebutted.  So,  the  making  of  an 
accommodation  note  is  prima  facie  evidence  of  an  indebtedness 
of  the  maker  to  the  payee,  though  this  presumption  is  also 
liable  to  be  rebutted.  If  the  accommodation  maker,  indorser 
or  acceptor  is  compelled  to  pay  the  paper  so  made,  indorsed  or 
accepted  by  him,  he  may  recover  the  amount  from  the  person 
for  whose  accommodation  it  was  made.  But,  in  such  a  case,  the 
action  is  not  founded  upon  the  accommodation  paper,  but  for 
money  paid ;  in  which  case  the  instrument  will  become  a  part 
of  the  evidence  to  show  the  defendant's  liability.  Bonney  v. 
Seely,  2  Wend.  481 ;  Ainslee  v.  Wilson,  7  Cow.  668  ;  Suyclam  v. 
West/all,  2  Denio,  205 ;  Wright  v.  Garlmghouse,  26  N.  Y.  (12 
Smith)  539.  The  complaint  may,  however,  state  all  the  facts 
showing  the  defendant's  liability,  including  a  copy  of  the 
accommodation  paper.  lb.;  27  Barb  474. 

ARTICLE  X. 

PRESENTMENT   FOR   ACCEPTANCE. 

Section  1.  In  general.  The  contract  of  a  drawer  of  a  bill  of 
exchange  is  a  promise  or  agreement  on  his  part  to  the  drawee, 
or  to  any  .other  person  to  whom  it  may  afterward  be  transferred, 
that  the  drawee  is  legally  competent  to  accept  the  bill  and  of 
rendering  himself  liable  to  its  payment ;  that  the  drawee  will 
duly  and  legally  accept  it,  that  he  will  pay  it  on  proper  pre- 
sentment for  payment,  and  that,  if  the  drawee  fails  to  do 
either  of  these  things,  the  drawer  will  pay  the  amount  of  the  bill 
with  legal  damages,  provided  he  has  due  notice  of  the  dishonor. 
The  theory  upon  which  a  bill  of  exchange  is  founded  is,  that 
the  drawer  has  money  in  the  hands  of  the  drawee,  which  the  bill 
directs  such  drawee  to  pay  over  to  the  payee  or  order.  Upon 
this  assumption,  the  law  implies  a  mere  conditional  contract  on 
the  part  of  the  drawer,  which  is.  that  he  will  pay  the  bill  if  it  is 
dishonored,  and  he  is  duly  notified  that  the  drawee  refuses  to 
accept,  or  refuses  to  pay  the  bill  at  maturity. 

If  the  drawer  has  funds  in  the  hands  of  the  drawee,  or  if  the 
latter  had  agreed  to  accept  the  bill,  the  drawee  has  a  right  to 
expect  that  the  bill  will  be  accepted  or  honored,  and  the  law  per- 
mits him  to  act  upon  that  supposition.  And  for  this  reason,  the 
law  also  provides  that  he  shall  have  prompt  notice  of  the  non- 
acceptance  or  non-payment  of  his  bill,  so  that  he  may  take  proper 
measures  for  his  own  security. 


BILLS  AND  NOTES.  619 

It  is  the  duty  of  the  payee  of  a  bill  of  exchange  to  present  it 
for  acceptance  to  the  right  person,  at  the  right  time  and  place, 
and  in  a  proper  manner.  And  he  has  a  right  to  expect  that  the 
bill  will  receive  an  immediate,  full  and  unconditional  acceptance. 
If  the  drawee  refuses  to  accept  the  bill,  even  when  he  has  suffi- 
cient funds  of  the  drawer  in  his  hands  to  pay  it,  this  will  not  give 
the  payee  any  right  of  action  against  the  drawee.  Luff'  v.  Pope, 
5  Hill,  413  ;  7  id.  577  ;  iV.  Y.  and  Virginia  State  Baiik  v.  Gib- 
son, 5  Duer,  575  ;  Harris  v.  Clark,  3  Comst.  93. 

If  the  bill  is  drawn  payable  at  sight,  or  a  certain  number  of 
days  or  months  after  sight,  or  after  demand,  the  presentment  is 
necessary  for  the  purpose  of  determining  the  time  when  it  will 
become  payable  ;  and  since  the  law  has  not  prescribed  any  par- 
ticular tirne  within  which  such  a  bill  is  to  be  presented  for  accept- 
ance, in  order  to  charge  the  drawer  and  indorsers,  it  therefore 
merely  requires  that  it  shall  be  presented  within  a  reasonable 
time,  and  leaves  it  to  the  court  to  determine  in  each  case  what 
is  a  reasonable  time  under  its  peculiar  circumstances.  Aymar 
V.  Beers,  7  Cow.  705  ;  Sice  v.  Cunningliam,  1  id.  397  ;  Rohin- 
son  V.  Ames,  20  Johns.  146  ;  Batcliellor  v.  Priest^  12  Pick.  399  ; 
Wallace  v.  Agry,  4  Mason,  336 ;  5  id.  118. 

A  check  or  draft  must  be  presented  within  a  reasonable  time. 
Veazie  Bank  v.  Winn,  40  Me.  60  ;  East  Biner  Bank  v.  Geclney, 
4  E.  D.  Smith,  582  ;  Woodin  v.  Frazee,  6  J.  &  Sp.  190  ;  PTicenix 
Ins.  Co.  v.  Allen,  11  Mich.  501  ;  ^Yerk  v.  Mad  Rimr  Bank,  8 
Ohio  St.  301.  What  is  a  reasonable  time  depends  upon  the  cir- 
cumstances of  the  case.  Fugitt  v.  Nixon,  44  Mo.  295  ;  Walsli 
V.  Dart,  23  Wis.  334 ;  Knott  v.  Venable,  42  Ala.  186. 

If  the  bill  is  drawn  payable  so  many  days  or  months  after 
date,  or  on  a  day  certain,  the  payee  need  not  present  it  for 
acceptance  until  maturity,  even  for  the  purpose  of  charging  the 
drawer  and  indorsers.  Plato  v.  Reynolds,  27  N.  Y.  (13  Smith) 
586  ;  Washington  v.  Triplett,  1  Peters,  25  ;  House  v.  Adams,  48 
Penn.  St.  261  ;  Walker  v.  Stetson,  19  Ohio  St.  400.  It  is,  how- 
ever, usual  and  better  in  such  a  case,  for  the  owner  of  a  bill  to 
present  it  at  an  early  day  for  acceptance,  because  if  it  is  accepted, 
he  thereby  acquires  the  additional  security  of  the  drawee  or 
acceptor ;  and  if  he  refuses  to  accept,  recourse  may  be  had 
immediately  to  the  drawer  and  indorsers  for  payment.  A  bill  of 
excliange  payable  at  a  time  certain  need  not  be  presented  for 
acceptance  until  maturity ;  but  if  it  is  dishonored,  notice  and 
protest  is  necessary.     Bank  of  Bennington  v.  Raymond,  12  Vt. 


t520  BILLS  AND  NOTES. 

401 ;  Glasgoio  v.  Copeland,  8  Mo.  268 ;  Carmichael  v.  Pennsyl 
vaiiia  Baiik^  4  How.  (Miss.)  567. 

A  liolder  need  not  present  a  bill  before  its  maturity  ;  but  if  he 
presents  it,  and  acceptance  is  refused,  lie  is  bound  to  give  imme- 
diate notice.  Lanclrum  v.  Trowbridge,  2  Mete.  (Ky.)  281.  Upon 
presentment,  non-acceptance  and  notice,  the  holder  may  sue  the 
drawer  without  waiting  for  the  maturity  of  the  bill.  Watson  v. 
Tarpleg,  18  How.  (U.  S.)  517. 

The  presentment  of  a  bill  for  acceptance  ought  to  be  made 
during  tlie  usual  business  hours  of  the  day,  or  between  morning 
and  bed-time  in  the  evening.  Cayuga  Co.  Bankv.  Hunt,  2  Hill, 
635  ;  Nehon  v.  Fotteral,  7  Leigh,  179 ;  Parker  v.  Gordon,  7  East, 
335  •  Elford  v.  Teed,  1  Maule  &  Selw.  28  ;  6  id.  44.  If  made  at 
a  bank,  it  should  be  made  during  the  usual  banking  hours. 
Newark  India  Rubber  Co.  v.  Bishop,  3  E.  D.  Smith,  48  ;  though, 
see  Bank  of  Syracuse  v.  Hollister,  17  N.  Y.  (3  Smith)  46. 

If  a  bill  is  addressed  to  the  drawee  at  a  particular  place,  the 
presentment  ought  to  be  made  at  that  place ;  and  if  the  drawee 
has  removed  to  another  part  of  the  same  city,  it  is  the  duty  of 
the  holder  to  make  diligent  inquiry  as  to  his  place  of  business 
or  residence,  and  presents  it  to  him  there  for  acceptance.  De- 
Wolf  n.  Murray,  2  Sandf.  166;  Cayuga  County  Bank  v.  Hunt, 
2  HilL  635  ;    Wilkins  v.  Jadis,  2  Barn.  &  Ad.  188. 

But  if  the  bill  is  not  addressed  to  any  particular  place,  the 
presentment  should  be  made  at  the  residence  or  domicile  of 
the  drawee  without  reference  to  the  place  where  it  is  payable. 
And  if  the  drawee  has  removed  to  another  place  of  residence 
in  .the  same  State,  the  holder  should  make  diligent  search  and 
inquiry  for  him,  and  present  the  bill  at  his  place  of  business  or 
residence  for  acceptance.  Taylor  v.  Snyder,  3  Denio,  145  ;  Ander- 
son V.  Drake,  14  Johns.  114 ;  Woodworth  v.  Bank  of  America, 
19  id.  391 ;  Ratcliff  v.  Planters'  Bank,  2  Sneed,  425 ;  Pierce 
V.  StrutJiers,  27  Penn.  St.  249.  Where  the  maker  of  a  promis- 
sory note  within  this  State  removes  therefrom,  and  continues  to 
reside  abroad  until  its  maturity,  the  indorser  may  be  charged 
without  a  demand  of  such  maker,  or  presentment  at  his  last  place 
of  residence.  Foster  v.  Julien,  24  N!  Y.  (10  Smith)  28 ;  Taylor 
V.  Snyder,  3  Denio,  145  ;  McGruder  v.  Bank  of  Washington,  9 
Wheat.  598 ;  Gillespie  v.  Hannahan,  4  McCord,  503  ;  Gist  v. 
Lybrand,  3  Ohio,  307  ;  Holtz  v.  Bo2?pe,  37  N.  Y.  (10  Tiff.)  634  ;  5 
Trans.  App.  110  ;  see  Gates  v.  Beecher,  60  N.  Y.  {\^  Sick.)  518. 
The  presentment  of  a  bill  ought  to  be  made  to  the  drawee  himself, 


•    BILLS  AND  NOTES.  621 

or  to  his  duly  authorized  agent.  SJiarpe  v.  Drea^  9  Ind.  281. 
And  if  presented  to  an  agent,  the  burden  of  proof  as  to  the 
agency  will  be  on  the  party  presenting  the  bill.  CheeJc  v.  Roper, 
5  Esp.  175. 

A  bill  ought  to  be  left  with  the  drawee  for  twenty- four  hours, 
if  he  desires  it ;  because  he  may  wish  or  need  that  time  to 
examine  the  state  of  the  accounts  between  himself  and  the 
drawer,  before  he  can  properly  determine  whether  he  has  funds 
sufficient  to  authorize  an  acceptance  by  him.  Case  v.  Burt,  15 
Mich.  82. 

"Every  person  upon  whom  a  bill  of  exchange  is  drawn,  and 
to  whom  the  same  is  delivered  for  acceptance,  who  shall  destroy 
such  bill,  or  refuse,  within  twenty -four  hours  after  such  delivery, 
or  within  such  period  as  the  holder  may  allow,  to  return  the  bill, 
accepted,  or  non-accepted,  to  the  holder,  shall  be  deemed  to  have 
accepted  the  same.  1  R.  S.  722,  §  11,  Edm.  ed.  The  general  rule 
is  that  the  presentment  for  acceptance  should  be  made  by  the 
rightful  holder  or  owner,  or  by  his  duly  authorized  agent.  If 
the  drawee  accepts  the  bill  he  will  be  bound,  though  it  may  be 
presented  by  one  not  having  authority  to  present  it.  But  in  such 
a  case  he  is  not  precluded  from  afterward  disputing  the  genu- 
ineness of  the  succeeding  indorsements,  for  his  acceptance  merely 
admits  the  genuineness  of  the  drawer's  signature.  Canal  Bank  v. 
Bank  of  Albany,  1  Hill,  287.  Where  a  bill  is  drawn  upon  two 
persons  who  are  not  partners,  it  ought  to  be  presented  to  both  of 
them  for  acceptance,  since  neither  of  them  can  bind  the  other, 
in  such  a  case.  Willis  v.  Green,  5  Hill,  232  ;  Shepard  v.  Hawley, 
1  Conn.  370.  The  rule  is  otherwise  as  to  partners,  for  any  one  of 
them  may  accept  bills  in  the  firm  name,  if  within  the  scope  of 
the  firm  business.  Cayuga  Comity  Bank  v.  Hunt,  2  Hill,  635  ; 
Ba7ik  V.  Loner gan'  s  Adm)r,  21  Mo.  46. 

ARTICLE  XL 

ACCEPTANnE   OF   BILLS. 

Section  1.  In  generaL  An  acceptance  is  an  engagement  to 
pay  a  bill  according  to  the  tenor  of  the  acceptance  ;  and  a 
general  acceptance  is  an  engagement  to  pay  according  to  the 
tenor  of  the  bill.  A  bill  can  only  be  accepted  by  the  drawee, 
and  not  by  a  stranger,  except  for  honor.  NicJwUs  v.  Diamond, 
9  Exch.  157  ;  Lindus  v.  Brodioell,  5  C.  B.  583  ;  FolMll  v.  Wal- 
ter, 3  B.  &  Ad.  114 ;  Eastwood  v.  Bain,  3  H.  &  N.  738;    Davis 


622  BILLS  AND  NOTES.  * 

V.  Clarice,  6  Q.  B.  16.  If  a  bill  is  drawn  upon  several  persons  not 
in  partnership,  it  should  be  accepted  by  all,  and,  if  not,  may  be 
treated  as  dishonored.  Dupays  v.  Shepherd^  Holt's  Rep.  297. 
Acceptance  will,  however,  be  binding  upon  such  of  them  as  do 
accept.  Owen  v.  Von  Uster^  10  C.  B.  318 ;  NlcJwlls  v.  Diamond, 
9  Exch.  154. 

It  can  scarcely  be  too  frequently  repeated,  that  in  the  particu- 
lar contract  created  by  a  bill  of  exchange,  the  acceptor  is  regarded 
as  the  principal  debtor  or  contractor,  while  the  drawer  and  in- 
dorsers  are  looked  upon  as  his  sureties ;  and  this  mode  of  con- 
sidering the  subject  ought  to  be  kept  steadily  in  view,  inasmuch 
as  it  will  not  merely  facilitate  a  comprehension  of  the  forms  of 
pleadings  applicable  to  bills,  but  must  also  conduce  to  a  right 
appreciation  of  the  liabilities  of  the  various  parties  whose  names 
are  attached  to  such  instruments.  The  drawee  named  in  a  bill 
of  exchange  is  not  legally  a  party  to  it  until  he  accepts  it.  But 
the  act  of  acceptance  is  like  the  making  of  a  promissory  note  ; 
the  acceptor  then  becomes  the  principal  debtor,  and  he  is  then 
liable  to  pay  the  amount  mentioned  in  the  bill  to  the  payee  or 
holder  thereof  when  it  becomes  due.  If  the  drawee  has  funds  in 
his  hands  which  belong  to  the  drawer,  he  ought,  according  to 
mercantile  usage,  to  accept  the  bill ;  but  his  legal  obligation  to 
do  so  is  no  greater  than  is  that  of  a  debtor  to  give  a  promissory 
note  to  his  creditor  for  the  sum  due  him. 

Unless  the  drawee  has  actually  accepted  the  bill,  or  made 
some  valid  agreement  to  do  so,  he  is  not  liable  to  the  payee  or 
holder  of  the  bill,  notwithstanding  he  has  sufficient  funds  of  the 
drawer  in  his  hands  at  the  time.  Butterworth  v.  Peck,  5  Bosw. 
341  ;  25  N.  Y.  (11  Smith)  239  ;  Lowery  v.  Steward,  3  Bosw.  505  ; 
Chapman  v.  White,  6  N.  Y.  (2  Seld.)  412  ;  Winter  v.  Drury,  5 
N.  Y.  (1  Seld.)  525  ;  Cowperthwaite  v.  Sheffield,  3  Comst.  243. 
Ante,  503.  The  holder  for  value  of  a  bill  drawn  in  pursuance  of 
a  promise  to  accept  by  the  drawee,  and  taken  on  the  faith  of 
such  promise,  may  maintain  an  action  in  his  own  name  against 
the  drawee  on  his  refusal  to  accept.  Barney  v.  JSfewcomh,  9 
Cush.  46.  At  common  .law  a  parol  or  verbal  acceptance  of  a  bill 
of  exchange  is  valid,  and  will  bind  tlie  acceptor.  Lumley  v. 
Palmer,  2  Strange,  1000 ;  Arnold  v.  Sprague,  34  Vt.  402 ; 
Leonard  v.  Mason,  1  Wend.  522 ;  Edson  v.  Fuller,  22  N.  H. 
183  ;  Lannan  v.  Smith,  7  Gray,  150  ;  StocJcwell  v.  Bramble,  3 
Ind.  428  ;  Williams  v.  Winans,  2  Green,  339  ;  Ward  v.  Allen,  2 
Mete.  (Ky.)  53  ;  Walker  v.  Lyde,  1  Rich.  249 ;  Pierce  v.  Kitiridge, 


BILLS  AND  NOTES.  623 

115  Mass.  374 ;  Scudder  v.  Union  Rational  Bank  of  Chicago,  51 
How.  Pr.  339,  U.  S.  Court  decision. 

The  usual  manner  of  acceptance  is  for  the  drawee  to  write  the 
word  "Accepted"  across  the  face  of  tlie  bill,  followed  by  the 
date  and  his  signature.  The  date  is  not  material  unless  the  bill 
is  payable  at  a  certain  number  of  days  after  sight  or  acceptance  ; 
and  in  such  a  case,  the  date  ought  to  be  added  ;  but  if  this  is  not 
done  at  the  time  of  accepting,  the  actual  date  may  always  be 
shown  by  parol  evidence,  which  will  have  the  same  legal  effect 
as  though  the  date  had  been  written.  The  statute  of  New  York 
has  prescribed  certain  rules  in  relation  to  the  acceptance  of  bills, 
which  are  the  controlling  law  upon  the  subject  in  that  State : 

"No  person  within  this  State  shall  be  charged  as  an  acceptor 
of  a  bill  of  exchange,  unless  his  acceptance  shall  be  in  writing, 
signed  by  himself  or  his  lawful  agent."  1  R.  S.  722,  §  6, 
Edm.  ed. 

"If  such  acceptance  be  written  on  a  paper  other  than  the  bill, 
it  shall  not  bind  the  acceptor,  except  in  favor  of  a  person  to 
whom  such  acceptance  shall  have  been  shown,  and  who,  on  the 
faith  thereof,  shall  have  received  the  bill  for  a  valuable  consider- 
ation." Id.,  §7. 

"An  unconditional  promise  in  writing,  to  accept  a  bill  before 
it  is  drawn,  shall  be  deemed  an  actual  acceptance  in  favor  of 
every  person  who,  upon  the  faith  thereof,  shall  have  received  the 
bill  for  a  valuable  consideration."  Id.,  §  8. 

"Every  holder  of  a  bill  presenting  the  same  for  acceptance, 
may  require  that  the  acceptance  be  written  on  the  bill.  A  refusal 
to  comply  with  such  request  shall  be  deemed  a  refusal  to  accept, 
and  the  bill  may  be  protested  for  non-acceptance."  Id.,  §  9. 

"The  last  four  sections  shall  not  be  construed  to  impair  the 
right  of  any  person  to  whom  a  promise  to  accept  a  bill  may  have 
been  made,  and  who,  on  the  faith  of  such  promise,  shall  have 
drawn  or  negotiated  the  bill,  to  recover  damages  of  the  party 
making  such  promise,  on  liis  refusal  to  accept  such  bill."  Id  , 
§  10.  Under  section  8  of  this  statute,  a  promise  to  accept  a  draft 
drawn  by  a  party  is  equivalent  to  an  acceptance.  Johnson  v. 
Clark,  89  N.  Y.  (12  Tiff.)  216  ;  Merchants'  Exchange  National 
Bank  v.  Cardozo,  3  J.  &  Sp.  162. 

Under  these  provisions  of  the  statute,  an  acceptance  will  be 
valid  and  sufficient,  if  the  drawee  merely  writes  his  name  across 
the  face  of  the  bill.  S^year  v.  Pratt,  2  Hill,  582.  But  this  was 
the  rule  before  the  statute  was  enacted.  lb. 


624  BILLS  AND  NOTES. 

A  check  ought  to  be  presented  for  payment  within  a  reasonable 
time.  Cowing  v.  AUman,  1  S.  C.  (T.  &  C.)  494 ;  NunnemaJcer 
V.  Lanier,  48  Barb.  234 ;  Kelly  v.  Second  National  Bank,  52  id. 
328  ;  Syracuse,  etc.,  E.  R.  Co.  v.  Collins,  3  Laos.  20  ^  57  N.  Y. 
(12  Sick.)  641. 

A  check  is  not  intended  to  be  accepted  like  a  bill  of  exchange, 
but  is  expected  to  be  paid  on  presentment  for  that  purpose  by 
the  payee  or  holder.  But  where  a  check  is  drawn  upon  a  bank, 
a  practice  has  been  adopted  which  is  nearly  or*  quite  equivalent 
to  an  acceptance  of  a  bill.  If  a  check  is  drawn  upon  a  bank, 
and  one  of  its  officers,  who  is  authorized  to  certify. checks,  writes 
a  certificate  upon  such  check,  declaring  that  it  is  "good,"  this 
is  equivalent  to  an  acceptance  of  a  bill,  or  of  a  promise  to  pay 
the  amount  to  the  payee  or  holder  of  the  bill.  Willets  v.  Phoenix 
Banlc,  2  Duer,  121 ;  Meads  v.  Merchants''  Bank,  25  N.  Y.  (11 
Smith)  143.  It  is  not  a  mere  promise  that  the  bank  has  the 
money  to  pay  the  check  at  the  time  of  certifying  it,  but  an  abso- 
lute promise  to  retain  the  monej^,  and  to  pay  the  check  in  all 
events.  lb.  In  such  a  case,  the  bank  is  primarily  liable  to  the 
holder,  until  it  is  discharged  by  payment,  release,  or  the  statute 
of  limitations.  lb. 

If  the  paying  teller  of  a  bank  improperly  certifies  that  a  check 
is  "good,"  in  a  case  in  which  the  drawer  has  not  funds  in  the 
bank  to  meet  or  pay  the  check,  the  bank  will  still  be  liable  to 
pay  the  amount  of  the  check  to  a  honafide  holder  for  value. 
Farmers  and  Mechanics^  Bank  v.  Butchers  and  Drovers^ 
Bank,  16  N.  Y.  (2  Smith)  125;  S.  C,  4  Kern.  623.  In  such  a 
case,  the  bank  will  be  liable,  notwithstanding  the  check  was  cer- 
tified by  the  teller  in  violation  of  his  duty,  for  the  mere  accom- 
modation of  the  drawer,  and  upon  his  promise  that  it  should 
never  be  presented  for  payment.  lb.  But  the  bank  is  not  liable 
upon  such  a  certified  check,  to  oue  who  is  not  a  bona  fide  holder 
and  for  value.  Meads  v.  Merchants''  Bank  of  Albany,  25  N.  Y. 
(11  Smith)  143.  If  the  check  shows  upon  its  face  that  it  has  been 
improperly  certified,  the  holder  cannot  recover  upon  it,  because 
he  cannot  hold  it  in  good  faith  when  the  instrument  itself  gives 
notice  of  its  defects.  Claflin  v.  Farmers  and  Citizens''  Bank, 
25  N.  Y.  (11  Smith)  293.  When  a  bank  gives  its  president  power 
to  certify  checks,  this  does  not  authorize  him  to  certify  his  own 
checks,  so  as  to  bind  the  bank,  when  the  cliecks  show  upon 
their  face  that  he  is  the  drawer.  lb.  See  Banks  and  Banking, 
as  to  the  presentment  of  checks,  and  their  certification. 


BILLS  AND  NOTES.  .  625 

When  no  words  of  restraint  or  limitation  are  expressed  in  an 
acceptance  of  a  bill  of  exchange,  it  is  an  absolute  or  general 
acceptance,  and  is  an  absolute  agreement  to  pay  in  money  accord- 
ing to  the  tenor  and  effect  of  the  bill.  Smith  v.  Muncie  Bank^ 
29  Ind.  158.  And  it  cannot  be  shown  by  parol  that  the  accept- 
ance was  not  absolute.  Haver  in  v.  Donnell,  7  Sm.  &  Marsh.  244. 
The  drawer  or  indorser  of  a  bill  of  exchange  which  specifies  its 
place  of  payment  only  by  its  address  to  the  drawee  at  a  city 
named,  is  not  discharged  by  its  acceptance  payable  at  a  particu- 
lar bank  in  that  city.  Troy  City  Bank  v.  Lawman^  19  N.  Y.  (5 
Smith)  477;  Myers  v.  Standart,  11  Ohio  St.  29;  Niagara  BanTc 
V.  Fairraan,  31  Barb.  403. 

A  bill  cannot  legally  be  drawn  payable  upon  a  contingency; 
but  there  may  be  a  valid  conditional  acceptance.  Smith  v. 
Abbot,  2  Strange,  1152;  Julian  v.  Shobrooke,  2  Wils.  9;  Smith 
V.  Veriue,  9  C.  B.  (N.  S.)  214.  And  when  a  bill  is  accepted  and 
payable  upon  the  happening  or  performance  of  certain  specified 
conditions,  the  acceptance  will  become  absolute  as  soon  as  the 
specified  conditions  are  performed,  but  not  until  that  time.  I^ig- 
gett  V.  Weed,  7  Kans.  273. 

A  holder  is  not  bound  to  receive  a  conditional  acceptance,  but 
if  he  does  so,  he  will  be  bound  to  abide  by  its  terms.  Gammon 
V.  Schmoll,  5  Taunt.  353;  Parker  v.  Gordon,  7  East,  385.  Where 
a  bill  is  accepted,  to  be  paid  when  in  funds,  or  when  money  is 
received  from  a  specified,  source,  and  the  payee  does  not  object 
to  such  acceptance,  he  cannot  resort  to  the  drawer  until  the 
acceptor  refuses  to  pay,  ^fter  the  receipt  of  funds  in  the  manner 
specified.  Gallery  v.  Pr indie,  14  Barb.  186;  Campbell  v.  Pet- 
tengill,  7  Greenl.  126;  Andrews  v.  Bagg,  Minor,  173.  If  the 
holder  accepts  a  conditional  acceptance  which  varies  from  the 
tenor  of  the  instrument,  this  will  discharge  the  indorsers.  Walker 
V.  Bank  of  State  of  Neio  York,  13  Barb.  636;  S.  C,  9  N.  Y.  (5 
Seld.)  582  ;  Niagara  Bank  v.  Fairman,  etc.,  31  Barb.  405;  Rome 
V.  Young,  2  Brod.  &  Bing.  165. 

Where  a  bill  of  exchange  is  transmitted  to  an  agent  for  pre- 
sentment for  acceptance,  such  agent  has  no  authority  to  accept 
a  conditional  acceptance,  and  if  the  drawee  accepts  the  bill  in 
any  other  manner  than  by  an  explicit  and  unequivocal  accept- 
ance, it  is  the  duty  of  such  agent  to  give  notice  to  the  holder  as 
in  the  case  of  non-acceptance,  and  he  will  be  liable  to  the  holder 
for  any  loss  which  he  may  sustain  from  a  neglect  to  do  so.  lb. 
When  the  drawee  intends  to  accept  a  bill  conditionally,  he  ought 

Vol.  L— 79 


626  BILLS  AND  NOTES. 

to  express  the  condition  in  the  written  acceptance,  for  parol  evi- 
dence is  not  admissible  to  change  its  terms,  and  clearly  so,  as 
against  a  honafide  holder  for  valiie.  Bank  of  Albion  v.  SmitJi^ 
27  Barb.  489;  Haver  in  v.  Donnelly  7  Smed'es  &  Marsh.  244. 

Though  a  bill  of  exchange  is  payable  at  a  particular  place,  it 
is  not  necessary  for  the  holder  in  an  action  thereon  against  the 
maker  or  acceptor,  to  aver  or  prove  a  demand  of  payment  of  the 
acceptor  at  that  place.  Foden  v.  Sharp^  4  Johns.  183;  Wolcott 
v.  Van  Santtoord,  17  id.  248 ;  Caldwell  v.  Cassidy,  8  Cow.  271 ; 
Haxtun  v.  BlsJiop^  3  Wend.  13,  20 ;  Bockray  v.  Dunn,  37  Me. 
442;  Carter  v.  Smiili,  9  Cush.  321;  Middleton  v.  Boston  Loco- 
motive Works,  26  Penn.  St.  257;  Reeve  v.  Peck,  6  Mich.  240* 
Martin  v.  Hamilton,  5  Harr.  314,  329 ;  Hubhell  v.  Lord,  9  Tex. 
472*;  McKenzie  v.  Bur  ant,  9  Rich.  (Law)  61. 

In  an  action  against  an  indorser  upon  a  note  payable  at  a  par- 
ticular place,  presentment  must  be  alleged  to  have  been  made  at 
the  place  specified.  Ferner  v.  Williams,  37  Barb.  9;  14  Abb.  215  ; 
Laiorence  v.  Bohyns,  30  Mo.  196;  see  Troy  City  Bank  v.  Grant, 
Hill  &  Denio,  119.  But  the  acceptor  may  defeat  the  action  by 
alleging  and  proving  that  he  was  ready  to  pay  at  the  place  accord- 
ing to  the  terms  of  his  acceptance  (ib.;  Green  v.  Goings,  7  Barb. 
652),  or  that  he  has  been  injured  by  a  failure  to  make  such  de- 
mand. Freeman  v.  Curran,  1  Minn.  169;  Nicholls  v.  Pool,  2 
Jones  (L.),  23. 

The  acceptor  is  presumed  to  know  the  handwriting  of  the 
drawer,  and  if  he  accepts  a  bill  with  a  forged  signature  of  the 
drawer,  he  will  be  liable  to  pay  the  aniovint  to  a  honafide  holder 
of  the  bill  for  value.    Ante,  508,  600. 

ARTICLE  XII. 

PEOCEEDINGS  ON"  NOJS'-ACCEPTAN'CE. 

Section  1.  In  general.  Where  the  drawee  of  a  bill  of  exchange 
refuses  to  accept  it,  the  holder  is  required  to  take  the  same  steps 
in  relation  to  such  non-acceptance  that  he  is  bound  to  take  in 
relation  to  a  bill  or  note  in  case  of  its  non-payment  upon  a  proper 
presentment  for  payment.  The  principles  which  govern  the  giv- 
ing of  notices  for  non-acceptance  are  precisely  the  same  as  those 
relating  to  the  non-payment  of  bills  and  notes. 

Each  of  the  successive  indorsers  of  a  bill  is  regarded  as  a  new 
drawer,  and  his  contract  is  an  agreement  to  pay  the  bill  upon 
certain  conditions,  and,  in  ordinary  cases,  these  conditions  are 


BILLS  AND  NOTES.  627 

tliat  the  payee  or  holder  will  duly  present  the  bill  to  the  drawee 
for  acceptance,  and  if  accepted,  for  payment  at  maturity,  and 
that  in  case  the  bill  is  dishonored  by  non-acceptance  or  by  non- 
payment, that  due  notice  thereof  shall  be  given  to  such  drawer 
or  indorser. 

The  general  rule  is,  that  a  failure  by  the  holder  to  give  to  the 
drawer  or  indorser  due  notice  of  non-acceptance,  or  non-pay- 
ment, will  discharge  them  from  all  liability  on  the  bill. 

The  reason  why  this  notice  is  required  is,  that  the  drawers  or 
indorsers  may  take  the  proper  steps  to  secure  or  protect  them- 
selves, in  case  of  the  non-acceptance  or  non-payment  of  the  bill. 

If  the  drawee  refuses  to  accept  or  pay  a  bill  on  proper  present- 
ment, and  due  notice  is  given  to  the  drawers,  they  will  then  have 
an  opportunity  of  preventing  a  further  accumulation  of  their 
funds  in  the  hands  of  the  drawee,  or  of  withdrawing  such  as  may 
then  be  in  his  hands,  or  the  indorsers  may  be  able  to  obtain  secu- 
rity or  payment  from  any  prior  parties  who  are  liable  to  them. 
The  object  of  the  rule  which  requires  notice  is  thus  evident,  but 
when  the  reason  for  the  rule  ceases,  or  when  it  does  not  exist,  the 
rule  itself  ceases  to  be  applicable.  And,  therefore,  no  notice  is 
required  in  those  cases  in  which  a  want  of  notice  could  not  pos- 
sibly do  the  drawers  or  indorsers  any  injury.  If  the  indorser  is 
the  actual  debtor,  and  the  bill  was  discounted  for  his  accommo- 
dation, and  he  received  the  money  raised  on  the  bill,  he  is  not 
entitled  to  notice  of  dishonor;  and  the  rule  is  the  same  where  the 
indorser  has  taken  into  his  own  hands  the  entire  effects  of  the 
acceptor,  or  a  sufficient*  quantity  thereof  to  indemnify  him. 
Mechanics'  Bank  v.  Griswold,  7  Wend.  165;  Barton  v.  Balcer, 
1  Serg.  &  Rawle,  334  ;  DwGall  v.  Farmers''  Bank,  9  Gill  &  Johns. 
31.  But  merely  taking  a  judgment  or  of  security  by  an  indorser 
from  the  acceptor  of  a  bill,  or  the  maker  of  a  note,  does  not  dis- 
pense with  a  proper  demand  and  notice,  unless  it  appears  that 
funds  sufficient  to  pay  the  bill  or  note  have  come  to  the  hands 
of  the  indorser,  or  that  all  the  property  of  the  acceptor  or  maker 
has  been  transferred  to  the  indorser.  Seacord  v.  Miller.  13  N.  Y. 
(3  Kern.)  55;  Taylor  v.  French,  4  E.  D.  Smith,  458;  Spencer  v. 
Harvey,  17  Wend.  489;  Marine  Bank  v.  Smith,  18  Me.  99; 
Woodman  v.  Eastman,  10  N.  H.  359 ;  Cramer  v.  Perry,  17  Pick. 
332;  Kramer  v.  San  ford,  4  Watts  &  Serg.  328;  Kyle  v.  Green, 
14  Ohio,  495;  WatTcins  v.  Cranch,  5  Leigh,  522;  Durham  v. 
Price,  5  Yerg.  300;  Watt  v.  Mitchell,  6  How.  (Miss.)  131;  Benny 
v.  Palmer,  5  Ired.  610.     The  general  presumption  is,  that  the 


628  BILLS  AND  NOTES. 

drawer  or  indorser  has  been  injured  by  the  want  of  a  proper  and 
legal  notice  that  the  bill  has  been  dishonored,  and,  'prima  facie^ 
they  are  discharged  if  such  notice  is  not  given;  but  this  pre- 
sumption may  be  rebutted  by  evidence ;  and  if  the  holder  shows 
affirmatively  that  no  injury  was  sustained  in  consequence  of  the 
omission  to  give  notice,  he  may  recover.  Commercial  Bank  of 
Albany  v.  HugTies,  17  Wend.  94.  So,  where  the  drawer  of  a  bill 
has  no  funds  in  the  hands  of  the  drawee,  and  he  knows  that  fact 
at  the  time  of  drawing  the  bill,  and  he  has  no  right  to  expect 
that  the  bill  will  be  accepted  or  honored,  he  is  not  entitled  to 
notice  of  such  dishonor.  Franklin  v.  Yanderpool,  1  Hall,  78 ; 
Coyle  Y.  Smith,  1  E.  D,  Smith,  400;  Bicker  dike  v.  Bollman,  1 
Term  R.  405;  Warder  v.  Tucker,  7  Mass.  452;  Bhett  v.  Poe,  2 
How.  (U.  S.)  457;  EicJielberger  v.  Finley,  7  Harr.  &  Johns.  381; 
Foard  v.  WomacTi  2  Ala.  368 :  Cook  v.  Martin,  5  Sm.  &  Marsh. 
379;  Spear  v.  Atkinson,  1  Ired,  262.  The  mere  want  of  funds 
is  not  of  itself  a  sufficient  excuse  for  the  want  of  notice,  if  it 
appears  that  the  drawer  had  a  reasonable  expectation  that  the 
bill  would  be  accepted  and  paid.  Stanton  v.  Blossom,  14  Mass. 
116 ;  RoMnson  v.  Ames,  20  Johns.  146 ;  Campbell  v.  Pettengill^ 
7  Greenl.  126  ;  Austin  v.  Rodman,  1  Hawks,  195  ;  Hill  v.  Morris, 
2  Stew.  &  Port.  114 ;  Dunbar  v.  Tyler,  44  Miss.  1.  So,  if  the 
drawer  and  the  drawee  have  large  dealings  with  each  other,  and 
the  balances  between  them  are  fluctuating,  or  if  from  any 
arrangements  of  the  drawer  he  has  reason  to  believe  that  he 
will  have  funds  in  the  hands  of  the  drawee  when  the  bill  becomes 
due,  he  is  entitled  to  notice,  as,  for  instance,  when  the  drawer 
had  consigned  effects  or  goods  to  the  drawee  to  pay  the  bill, 
though  they  may  not  have  come  to  hand  at  the  time  when  the 
bill  was  presented  for  acceptance.  Legge  v.  Thorpe,  12  East, 
171 ;  Rucker  v.  Hiller,  16  id.  43.  Want  of  funds  in  the  hands 
of  the  drawee  may  dispense  with  notice  of  dishonor  to  the 
drawer  of  the  bill ;  but  the  rule  is  otherwise  as  to  an  indorser  of 
the  bill,  who  is  entitled  to  such  notice  of  dishonor  notwithstand- 
ing the  want  of  funds.  Warden  v.  Tucker,  7  Mass.  450  ;  Norton 
V.  Pickering,  8  B.  &  C.  610  ;  Barton  v.  Baker,  1  Serg.  &  Rawle, 
334 ;  Warder  v.  Tucker,  7  Mass.  452 ;  Scarborough  v.  Harris, 
1  Bay,  178 ;  Denniston  v.  Imbrie,  3  Wash.  C.  C.  401. 

The  burden  of  proof  is  on  the  holder  of  a  bill  to  show  that 
the  drawer  had  no  funds  in  the  drawee's  hands,  in  order  to 
excuse  want  of  notice.     TJiompson  v.  Stewart,  3  Conn.   172 ; 


BILLS  AND  NOTES.  629 

Ralston  v.  Bullits,  3  Bibb,  261 ;  Baxter  v.  Graves,  2  A.  K. 
Marsh.  (Ky.)  152. 

An  accommodation  drawer  is  entitled  to  notice,  even  tbougli 
he  had  no  funds  in  the  hands  of  the  drawee.  Merchants'  Bank 
V.  Easley,  44  Mo.  286. 

Fraud  in  the  other  parties  to  a  bill  does  not  deprive  an 
indorser  of  his  right  to  notice,  where  he  is  not  privy  to  the  fraud. 
Leach  v.  Hewitt,  4  Taunt.  731. 

The  death  of  the  drawee  may  render  a  presentment  for  accept- 
ance fruitless  and  unnecessary^  but  it  does  not  dispense  with  the 
necessity  of  giving  a  timely  and  proper  notice  of  the  dishonor 
of  the  bill.  Neither  does  the  death  of  the  drawer  or  indorser 
discharge  the  holder  from  his  duty  of  giving  a  proper  notice ; 
but  the  notice  must  be  sent  to  their  representatives,  if  the  holder 
knows  or  can  ascertain  who  they  are,  and  their  address.  Cayuga 
County  Bank  v.  Bennett,  5  Hill,  236. 

If  the  holder  of  a  bill  is  not  aware  of  the  death  of  the  drawer 
or  indorser,  he  should  give  notice  in  the  usual  manner  {Mer- 
cliants''  Banlc  v.  Birch,  17  Johns.  "25) ;  and  if  he  does  know  of 
the  death  of  the  indorser,  notice  may  be  given  in  the  u^ual  way, 
provided  he  does  not  know  who  are  the  legal  representatives  of 
such  indorser.     Steioart  v.  Eden,  2  Caines,  121. 

"  Whenever  the  residence  or  place  of  business  of  the  indorser 
of  a  promissory  note,  or  of  the  drawer  or  indorser  of  a  check, 
draft  or  bill  of  exchange,  shall  be  in  the  city  or  town,  or  when- 
ever the  city  or  town  indicated  under  the  indorsement  or  signa- 
ture of  such  indorser  or  drawer,  as  his  or  her  place  of  residence, 
or  whenever,  in  the  absence  of  such  indication,  the  city  or  town 
where  such  indorser  or  drawer,  from  the  best  information 
obtained  by  diligent  inquiry,  is  reputed  to  reside  or  have  a  place 
of  business,  shall  be  the  same  city  or  town  where  such  promis- 
sory note,  check,  draft  or  bill  of  exchange  is  paj^able  or  legally 
presented  for  payment  or  acceptance,  all  notices  of  non-payment 
and  non-acceptance  of  such  promissory  note,  check,  draft  or 
bill  of  exchange  may  be  served  by  depositing  them,  with  the 
postage  thereon  prepaid,  in  the  post-office  of  the  city  or  town 
where  such  promissory  note,  check,  draft  or  bill  of  exchange 
was  payable  or  legally  presented  for  payment  or  acceptance, 
directed  to  the  indorser  or  drawer  at  such  city  or  town.''  Laws 
1857,  eh.  416,  §  3. 

An  indorser  may  designate  the  street  and  number  of  his  resi- 
dence, and  if  he  continues  to  reside  there,  notice  of  protest, 


630  BILLS  AND  NOTES. 

served  under  this  section,  must  be  directed  to  him  at  that  place. 
Bartlett  v.  Robinson,  39  N.  Y.  (12  Tiff.)  187 ;  6  Trans.  App.  159; 
9  Bosw.  305.  An  indorser  had  resided  for  ten  years  in  a  city 
(Rochester)  where  a  note  was  payable  at  one  of  its  banks.  Six 
months  before  the  note  fell  due  she  removed  to  New  York  city. 
The  plaintiff's  agent  made  various  inquiries  shortly  before  the 
note  became  due,  and  among  others  of  a  relative  of  hers,  and 
was  informed  that  she  still  resided  in  the  city.  When  the  note 
was  left  at  the  bank  for  collection,  the  teller  was  informed  that 
all  the  parties  lived  in  Rochester,  and  he  so  advised  the  notary 
who  protested  the  note.  No  inquiry  was  made  in  Rochester 
upon  the  day  the  note  matured.  '  Notice  of  protest  was  mailed 
to  her  addressed  at  Rochester.  Tliis  was  held  to  be  proper  under 
this  statute.  Requa  v.  Collins,  51  N.  Y.  (6  Sick.)  144.  Deposit- 
ing a  notice  of  protest  in  a  postal  box  attached  to  a  lamp-post 
may,  by  a  liberal  construction  of  the  statute  (L.  1857,  ch.  416, 
§  3),  be  regarded  as  equivalent  to  depositing  the  same  in  the 
post-office.  Greenwich  Ban'k  v.  Be  Groot,  7  Hun,  210.  Thorough 
and  careful  inquiry  as  to  the  residence  of  the  indorser  is  required 
where  the  notice  is  sent  by  maU.  .  Merely  following  the  address 
given  in  the  city  directory  is  not  sufficient.  lb. 

This  statute  does  not  apply  to  bills  of  exchange,  checks, 
drafts  or  promissory  notes  bearing  date  prior  to  July  1,  1857, 
Laws  1857,  ch.  416,  §  4. 

Where  an  indorser  intends  to  charge  previous  indorsers,  and 
they  reside  in  different  places,  due  diligence  will  have  been  used 
where  notice  is  sent  the  day  following  that  on  which  it  is  received; 
and  the  rule  is  the  same,  although  the  paper  is  indorsed  from 
one  agent  to  another  for  collection  merely.  Farmers''  Ban'k  of 
Bridgport  v.  Vail,  21  N.  Y.  (7  Smith)  485,  488  ;  Howard  v.  Ives, 
1  Hill,  263  ;  Burkhalter  v.  Second  National  Bank,  42  N.  Y.  (3 
Hand)  538.  If  a  note  is  dishonored  on  Saturdaj^,  an  indorser 
will  be  duly  charged  if  the  agent,  who  has  the  note  for  collection, 
is  unable  to  ascertain  such  indorser' s  residence,  and  he  mails 
notice  of  its  non-payment  to  his  principal  on  the  following 
Monday,  who,  on  the  next  day  after  receiving  it,  mails  notice  to 
his  indorser.  lb. 

The  whole  duty  of  the  holder  of  a  protested  bill  is  discharged 
by  notice  to  his  immediate  indorser;  and  all  the  parties  to  the 
bill  or  note  will  be  charged,  if  they  receive  notice  in  due  course 
from  their  immediate  subsequent  indorsers.  West  Rivfr  Bank 
V.  Taylor,  34  N.  Y.  (7  Tiff.)  128 ;  Farmer  v.  Rand,  16  Me.  453  ; 


BILLS  AND  NOTES.  631 

Eagle  BanJc  v.  Hatliaway,  5  Mete.  212;  Butler  v.  Duval,  4 
Yerg.  265. 

If  the  residence  of  the  drawer  or  indorser  is  not  known,  it  is 
the  duty  of  the  holder  to  use  due  diligence  to  ascertain  it,  and 
if  he  does  so  by  inquiring  of  business  men  and  persons  likely 
to  know,  and  having  no  interest  in  stating  it  erroneously,  he  is 
authorized  to  act  upon  the  information  so  acquired,  and  though 
misled  as  to  the  fact,  notice  sent  accordingly  will  be  good.  Seneca 
County  Bank  v.  Neass,  3  Comst.  442.  Under  the  statutes  of 
this  State,  it  will  be  sufficient  if  the  notice  is  directed  to  the  city 
or  town  where  the  person  sought  to  be  charged  resided  at  the 
time  of  drawing,  making  or  indorsing  the  note  or  bill,  unless 
such  person,  at  the  time  of  affixing  his  signature  to  the  instru- 
ment, specifies  the  post-office  to  which  the  notice  is  to  be  ad- 
dressed. Laws  1835,  ch.  141.  And,  since  this  statute,  the  holder 
is  not  bound  to  use  due  diligence  in  ascertaining  the  present 
residence  of  the  drawer  and  indorser ;  it  will  be  enough  if  the 
notice  sent  is  addressed  to  the  town  or  city  in  which  he  resides, 
or  to  the  post-office  in  an  adjoining  town  where  he  is  in  the  habit 
of  receiving  his  letters  and  papers,  provided  he  has  not  specitied 
a  different  place.  Downer  v.  Remer,  21  Wend.  10  ;  Montgomery 
County  Bank  v  Marslu  7  N.  Y.  (3  Seld.)  481 ;  Hunt  v.  Fish,  4 
Barb.  324.  When  the  known  residence  of  an  indorser  is  in  the 
village  where  the  note  is  held  and  made  payable,  notice  of  its 
dishonor  cannot,  under  the  statute  of  1838,  ch.  141,  be  served 
through  the  mail,  directed  to  him  at  his  place  of  business  in 
another  town ;  the  notice  should  be  served  upon  him  personally, 
or  by  leaving  it  at  his  residence  or  place  of  business.  Yan 
Yecliten  v.  Pruyn,  13  N.  Y.  (3  Kern.)  549.  See  the  law  of  1857, 
cited  ante,  629. 

The  sudden  illness  or  death  of  the  holder  or  his  agent,  or  other 
accident,  may  constitute  an  excuse  for  the  want  of  regular  notice 
to  any  of  the  parties,  in  case  it  is  given  as  soon  as  possible  after 
the  removal  of  the  impediment.  So,  the  breaking  oiit  of  a  war, 
which  blocks  up  the  usual  channels  of  communication ;  the  prev- 
alence of  a  malignant  fever  or  other  disease,  that  puts  a  stop  to 
all  business;  and,  in  general,  any  such  inevitable  accident  as 
prevents  the  giving  of  the  notice,  if  not  traceable  to  the  neglect 
of  the  holder,  will  excuse  the  delay  so  long  as  the  preventing 
cause  continues.  ScJiofield  v.  Bayard,  3  Wend.  488 ;  Patience 
V.  Townley,  2  J.  P.  Smith,  223  ;  Hopkirk  v.  Payn,  2  Brock.  20 ; 


632  BILLS  AND  NOTES. 

House  V.  Adams,  48  Penn.  St.  261 ;    Apperson  v.  Bynum,  5 
Coldw.  341 ;  Morgan  v.  Bank  of  Louisville,  4  Bush,  82. 

If  a  protest  is  made  on  Saturday,  notice  is  properly  sent  on 
Monday,  by  the  first  mail  that  closes  after  the  commencement  of 
the  ordinary  hours  of  business.  Howard  v.  Ives,  1  Hill,  263 ; 
Farmers''  Bank  of  Bridgport  v.  Vail,  21  N.  Y.  (7  Smith)  485. 
So,  if  the  protest  is  made  on  the  third  day  of  July,  the  notice 
will  be  suflELcieiit  if  it  is  sent  on  the  fifth  ;  or,  if  the  last  day  of 
grace  is  on  the  4th  day  of  July,  or  on  Sunday,  the  demand  of 
payment  must  be  made  on  the  day  previous.  Ransom  v.  Mack, 
2  Hill,  587 ;  Ouyler  v.  Stevens,  4  Wend.  566  ;  Lewis  v.  Burr,  2 
Caines'  Cas.  195.  The  rule  is  the  same  when  the  last  day  of  grace 
is  Thanksgiving  day,  lb.  ' '  The  following  days,  namely  :  the 
1st  day  of  January,  commonly  called  New  Year's  day ;  the  22d 
day  of  February,  known  as  Washington's  birthday;  the  30th 
day  of  May,  known  as  Decoration  day ;  the  4th  day  of  July, 
called  Independence  day  ;  the  25th  day  of  December,  known  as 
Christmas  day;  any  general  election  day;  and  any  day  appointed 
or  recommended  by  the  Governor  of  this  State,  or  the  President 
of  the  United  States,  as  a  day  of  Thanksgiving,  or  fasting  and 
prayer,  or  other  religious  observance,  shall,  for  all  purposes 
whatsoever  as  regards  the  presenting  for  payment  or  acceptance, 
and  of  the  protesting  and  giving  notice  of  the  dishonor  of  bills 
of  exchange,  bank  checks  and  promissory  notes,  made  after  the 
passage  of  this  act,  be  treated  and  considered  as  the  first  day  of 
the  week,  commonly  called  Sunday,  and  as  public  holidays ; 
and  all  such  bills,  checks  and  notes  otherwise  presentable  for 
acceptance  or  payment  on  the  said  day  shall  be  deemed  to  be 
presentable  for  acceptance  or  payment  on  the  secular  or  business 
day  next  preceding  such  holidays."     Laws  1875,  ch.  27,  §  1. 

§  2.  "  Whenever  the  1st  day  of  January,  the  22d  day  of  Febru- 
ary, the  30th  day  of  May,  the  4th  day  of  'July,  or  the  25th  day 
of  December,  shall  fall  upon  Sunday,  the  Monday  next  follow- 
ing shall  be  deemed  a  public  holiday  for  all  or  any  of  the  pur- 
poses aforesaid  ;  provided,  however,  that  in  such  case  all  bills  of 
exchange,  checks  and  promissory  notes,  made  after  the  passage 
of  this  act,  which  would  otherwise  be  presentable  for  acceptance 
or  payment  on  the  said  Monday,  shall  be  deemed  to  be  present- 
able for  acceptance  or  payment  on  the  Saturday  preceding." 
lb.,  §2. 

If  a  foreign  bill  is  dishonored,  it  should  be  protested,  and  in- 
formation of  the  protest  sent  with  the  notice.    But  inland  bills 


BILLS  AND  NOTES.  633 

and  notes  need  not  be  protested,  although  it  may  be  done.  If 
protested,  the  notary  must  conform  to  the  statutes  in  his  mode  of 
action.  It  is  the  common  practice  for  notaries  to  protest  bills 
and  notes,  and  to  send  notice  of  the  non-acceptance  or  the  non- 
payment to  the  drawers  and  indorsers. 

But,  although  a  protest  is  not  necessary,  it  is  necessary  that 
notice  of  non-acceptance  should  be  given  to  the  parties  sought  to 
be  charged  ;  and  such  notice  ought  to  state,  in  express  terms,  or 
by  necessary  implication,  that  the  bill  has  been  dishonored.  The 
notice  must  so  describe  the  bill  as  to  identify  it ;  must  be  so 
drawn  as  to  show  that  the  bill  has  been  duly  presented  for  pay- 
ment or  acceptance,  and  refused  or  dishonored;  must  be  given  in 
due  time  after  the  dishonor;  must  be  given  by  a  party  to  the  bill, 
or  by  some  one  duly  authorized  to  perform  the  act ;  and  must 
be  given  according  to  the  law  of  the  place  where  the  bill  was 
drawn  for  the  indorsement  made.  A  notice  which  is  dated  and 
mailed  on  the  next  day  after  a  note  becomes  due,  if  it  states  that 
the  note  "was  this  evening  protested  for  non-payment,  the  same 
having  been  duly  presented  and  payment  demanded,  which  was 
refused,"  is  sufficient  in  form,  and  is  mailed  in  due  time  where 
the  demand  was  made  on  the  day  preceding.  First  National 
Bank  of  Groton  \».  Crittenden,  2  S.  C.  (T.  &  C.)  118.  Although 
no  particular  form,  of  words  is  necessary  in  notifying  a  drawer 
or  indorser,  the  notice  will  be  bad  unless  it  in  some  way  imports 
that  the  bill  or  note  has  been  dishonored.  Hansom  v.  Mad;  2 
Hill,  587.  It  must  also  show  that  the  presentment  was  in  proper 
time  ;  and  a  notice  without  date,  which  states  that  the  note  has 
been  this  day  presented,  is  defective.  Wynn  v.  Alden,  4  Denio, 
163     See  De  La  Hunt  v.  Higgins,  9  Abb.  422. 

The  notice  need  not  be  in  writing,  and  no  particular  form  of 
words  is  necessary  to  be  used ;  but  the  language  employed  must 
be  such  as  to  convey  notice  to  the  drawer  or  indorser  that  the 
bill  has  been  dishonored  ;  and  to  do  this  it  is  essential  that  the 
■notice  should  describe  the  bill,  and  show,  either  in  express  terms, 
or  in  words  that  necessarily  convey  information  to  the  party 
notified,  that  acceptance  or  payment  has  been  refused  on  due 
presentment.  The  essential  facts  to  be  stated  in  a  notice  of  pro- 
test to  bind  the  indorser  are,  that  the  note  was  not  paid  at  ma- 
turity, that  it  has  been  protested  for  non-payment,  and  to  iden- 
tify the  note.  Artisans'  BanK  v.  Backus,  36  N.  Y.  (9  Tiff.)  100; 
1  Trans.  App.  75 ;  3  Abb.  (N.  S.)  273. 

Vol.  L— 80 


634  BILLS  AND  NOTES. 

When  there  is  no  dispute  about  the  facts,  the  sufficiency  of 
the  notice  is  a  question  of  law,  to  be  determined  by  tlie  court. 

A  notice  of  dishonor  must,  in  general,  come  from  the  holder  or 
his  agent,  or  from  a  party  to  the  bill,  though  it  will  be  good  if 
given  by  an  indorsee  who  has  transferred  it  as  a  collateral  security 
for  an  existing  debt ;  for  such  a  person  has  a  direct  interest  in 
the  bill,  and  a  right  of  recourse  to  the  parties  liable  thereon, 
wlienever  the  bill  comes  back  into  his  hands.  Cowperthwalie  v. 
Sheffield,  1  Sand.  416  ;  Walmsley  v.  Acton,  44  Barb.  312  ;  Bach- 
elor V.  Priest,  12  Pick.  406;  Freemans'  BanliY.  Perkins,  18 
Me.  292.  When  a  bill  is  drawn  upon  a  firm  by  one  of  several 
partners,  for  matters  relating  to  the  partnership  business,  or 
when  the  drawers  and  acceptors  are  the  same  persons,  no  notice 
of  protest  need  be  given  ;  for  in  each  of  these  cases  the  party  to 
be  charged  has  notice  of  the  dishonor  of  the  bill  so  drawn  in 
the  very  act  of  dishonoring  it.  Gowan  v.  JacJcson,  20  Johns. 
176  ;  Bank  of  Rochester  v.  Monteath,  1  Denio,  402.  A  written 
unsigned  notice  is  not  sufficient.  Walmsley  v.  Acton,  44  Barb. 
312  ;  Klockenhaum  v.  Fierson,  16  Cal.  375. 

A  bill  of  exchange  which  has  been  dishonored  by  non-accept- 
ance need  not  be  presented  for  payment.  Bank  of  Rochester  v. 
Gray,  2  Hill,  227.  The  contract  of  the  drawer  and  indorser  is, 
that  the  bill  will  be  accepted  when  duly  presented  for  that 
purpose,  and  as  soon  as  that  contract  is  broken  by  reason  of 
the  non-acceptance  of  the  bill,  the  holder  acquires  a  right  of 
action  on  the  bill  by  complying  with  the  conditions  of  such  con- 
tract. One  of  these  conditions  is  that  the  bill  shall  be  duly  pre- 
sented for  acceptance,  and  the  other  is  that  notice  of  the  drawee's 
refusal  to  accept  shall  be  given  to  the  drawer  and  indorsers. 
Ante,  618,  627. 

By  omitting  either  of  these  acts,  the  holder  loses  his  right  of 
recourse  to  these  parties,  who  are  thereby  discharged.  Spies  v. 
Gilmore,  1  Conist.  321.  So  due  presentment  for  payment,  and 
notice  of  non-payment  are  conditions  precedent  to  the  liability 
of  an  indorser  of  a  promissory  note.  Cayuga  County  Bank  v. 
Warden,  1  Comst.  413;  S.  C,  2  Seld.  19.  These  omissions  of  the 
holder  may,  however,  be  waived  by  a  subsequent  promise  to 
pay  the  bill  or  note,  if  the  promise  is  made  with  full  knowledge 
on  the  part  of  the  drawer  or  indorser,  that  he  has  been  dis- 
charged by  the  neglect  of  the  holder.  Tebbetts  v.  Dowd,  23 
Wend.  379 ;  Cram  v.  Sherburne,  14  Me.  48  ;  Martin  v.  Ligersoll, 
8  Pick.  1 ;  Beck  v.  Thompson,  4  Harr.  «&  Johns.  631  ;  Farring- 


BILLS  AND  NOTES.  635 

ton  V.  Brown,  7  N.  H.  271 ;  Porter  v.  Hadenpuyl,  9  Micli.  11 ; 
Blodgett  v.  Durgln,  32  Vt.  361 ;  Bobbins  v,  Pinckhard,  5  Sm.  & 
Marsh.  51 ;  Moore  v.  Tucker,  3  Ired  347 ;  Tobey  v.  ^erZ^,  26 
111.  426,  But  nothing  short  of  the  clearest  assent,  either  express 
or  implied,  will  amount  to  a  waiver.  Oswego  Bank  v.  Knower, 
Hill  &  Denio,  122,  A  promise  which  is  made  in  ignorance 
of  the  fact  that  no  notice  has  been  given  will  not  be  sufficient. 
Jones  V.  8aoage,  6  Wend.  658 ;  Otis  v.  Hussey,  3  N.  H.  346  ; 
Kennon  v.  McRea,  7  Port.  (Ala.)  175  ;  Fleming  v.  McClure, 
1  Brev.  428 ;  Hunt  v.  WadlelgJi,  26  Me.  271  ;  Hunter  v.  Hook, 
64  Barb.  468.  A  waiver  of  a  notice  of  demand  is  no  waiver 
of  a  demand,  and  does  not  dispense  with  the  demand  itself. 
Backus  V.  STdpJierd,  11  Wend.  629 ;  Buchanan  v.  Marshall, 
22  Vt.  561 ;  Drinkwater  v.  Tebbits,  17  Me.  16. 

ARTICLE  XIII. 

PKESENTMENT   FOE,   PAYMEXT,  AXD    PAYMENT. 

Section  1.  In  general.  In  an  action  against  the  maker  of  a 
promissory  note,  or  the  acceptor  of  a  bill  of  exchange,  it  is  not 
necessary  for  the  holder  to  allege  in  his  complaint,  or  to  prove 
at  the  trial  that  a  demand  of  payment  has  been  made.  It  is  no 
part  of  the  contract  that  they  shall  have  notice  in  such  cases  ; 
and  as  against  them  an  action  is  a  sufficient  demand.  Foden  v. 
Sharp,  4  Johns.  183  ;  Wolcott  v.  Van  Santword,  17  id.  248 ; 
Fairchild  v.  Ogdensburgh  O.  andR.  R.  R.  Co.,  1  E.  P.  Smrith,  337  ; 
Caldwell  v.  Cassidy,  8  Cow.  271 ;  Haxlun  v.  Bishop,  3  Wend. 
13 ;  Green  v.  Goings,  7  Barb.  652  ;  ante,  626. 

Whether  the  instrument  is  drawn  payable  generally,  or  at  a 
particular  place,  the  holder  is  not  bound  to  allege  or  prove  a 
demand  at  any  place  ;  but  if  it  is  payable  at  a  particular  place, 
and  no  demand  was  made  there,  the  defendant  may  show  that 
he  was  ready  to  pay  at  that  place,  which,  if  established,  will 
defeat  the  action.  lb.  But  wliere  a  note  is  payable  at  a  particu- 
lar place  or  bank,  it  will  be  a  sufficient  demand  if  the  note  is  left 
at  that  bank  for  collection  on  the  last  day  of  grace,  and  if  the 
maker  has  no  funds  there,  it  may  be  returned  to  the  holder  before 
the  expiration  of  the  last  business  hour.  Merchants^  Bank  v. 
Elderkin,  25  N.  Y.  (11  Smith)  178. 

If  the  maker  of  a  promissory  note,  or  the  acceptor  of  a  bill  of 
exchange  absconds,  this  will  not  change  the  contract,  nor  release 
the  ijidorser  from  his  obligations.     The  only  eJSect  of  such  aa 


636  BILLS  AND  NOTES. 

event  will  be  to  require  due  diligence  on  the  part  of  the  holder 
in  taking  the  proper  steps  to  charge  the  indorsers.  If  the  maker 
or  acceptor  has  removed  from  the  State  or  gone  out  of  the  country, 
after  having  made  the  note,  the  holder  will  be  excused  from  de- 
manding payment  of  him  personally  ;  and  a  demand  at  the  place 
where  it  is  made  payable,  if'  payable  at  a  particular  place,  will  be 
sufficient.  Anderson  v.  Drake,  14  Johns.  114  ;  Taylor  v.  Snyder, 
3  Denio,  145 ;  Adams  v.  Leland,  30  N.  Y.  (3  Titf.)  309.  But 
where  there  has  been  no  removal  by  the  maker  or  acceptor  after 
the  making  of  the  bill  or  note,  the  holder  must  present  it  to  the 
maker  or  acceptor  personally,  or  at  his  residence,  or  place  of 
business,  whether  that  be  in  this  State  where  the  instrument  was 
made,  or  in  a  foreign  country.  lb. ;  Spies  v.  Ollmore,  1  Comst. 
321.  Where  a  note  is  made  payable  at  a  certain  locality,  with- 
out designation  of  a  particular  place  therein,  if  the  maker  has  no 
place  of  business  or  residence  in  the  place  where  it  is  in  general 
made  payable,  if  the  holder  of  the  note  is  within  such  locality, 
on  the  day  of  payment,  with  the  note,  ready  to  receive  payment, 
that  is  sufficient  to  constitute  a  presentment  and  demand.  Meyer 
V.  Hlbsher,  47  N.  Y.  (2  Sick.)  265. 

Neither  the  insolvency,  nor  the  death  of  the  maker  of  a  prom- 
issory note,  or  the  acceptor  of  a  bill  of  exchange,  is  of  itself 
sufficient  to  dispense  with  the  necessity  of  a  regular  demand  of 
payment.  Where  the  maker  or  acceptor  is  dead,  the  demand 
ought  to  be  made  upon  his  personal  representative  ;  unless  the 
note  is  payable  at  a  particular  place,  in  which  case  it  may  be 
presented  for  payment  at  the  place  specified.  Willis  v.  Oreen,  5 
Hill,  232;  Stewart  v.  Eden,  2  Caines,  121 ;  Merchants''  Bank  v. 
Birch,  17  Johns.  25  ;  Pliilpott  v.  Bryant,  3  Carr.  &  Payne,  244. 

If  the  house  of  the  maker  or  acceptor  is  closed,  it  is  the  duty 
of  the  holder  to  make  diligent  inquiry  for  him ;  and  in  case  of 
his  removal  to  another  residence  in  the  same  State,  the  holder 
must  follow  him  there  and  present  the  bill  or  note  for  payment. 
Anderson  v.  Drake,  14  Johns.  114,  117.  Where  the  bill  or  note 
specifies  a  place  of-  payment,  a  presentment  at  that  place  will  be 
sufficient,  if  made  during  the  usual  hours  of  business,  though 
the  place  be  closed,  and  there  is  no  person  there  to  pay  it.  De- 
Wolf  V.  Murray,  2  Sandf.  166.  Where  the  drawer  of  a  bill  has 
no  eff'ects  in  the  hands  of  the  drawee,  and  he  has  no  reason  to 
expect  that  the  bill  will  be  paid,  a  presentment  of  the  bill  for 
payment  is  not  necessary  for  the  purpose  of  charging  him.  Mob- 
ley  V.  Clark,  28  Barb.  390 ;  Terry  v.  Parker,  6  Ad.  &  E.  502. 


BILLS  AND  NOTES.  637 

The  same  reasons  wliicli  will  excuse  a  presentment  for  accept- 
ance, will  also  excuse  presentment  for  payment.     Ante^  627,  628. 

A  bill  or  note  ought  to  be  presented  for  payment  by  the  holder 
or  his  authorized  agent ;  and  a  person  to  whom  a  note  or  bill  is 
indorsed  or  delivered  for  collection  is  to  be  regarded  as  the 
holder  for  the  purpose  of  making  such  demand  and  of  giving 
notice.  Mead  v.  Engs,  5  Cow.  303 ;  Howard  v.  Ives,  1  Hill,  263 ; 
Farmers'  Bank,  etc.  v.  Vail,  21  N.  Y.  (7  Smith)  485.  The  author- 
ity of  an  agent  to  demand  payment  need  not  be  in  writing,  nor 
need  it  be  in  express  terms  ;  if  he  has  the  instrument  in  his  pos- 
session, ready  to  be  delivered  up  on  payment  thereof,  that  will 
be  sufficient.  A  mere  stranger  to  an  instrument  cannot  charge 
the  parties  to  it  by  giving  them  notice  of  its  dishonor ;  though 
where  a  party  comes  into  possession  of  such  paper  by  accident, 
as  by  the  death  of  an  agent,  he  may,  and  ought  to  present  it  for 
payment,  and  give  the  proper  notice  of  a  refusal.  And  when- 
ever a  negotiable  bill  or  note  comes  into  the  hands  of  any  person 
under  a  blank  indorsement,  or  when  it  is  drawn  payable  to  bearer, 
he  is  prima  facie  the  holder,  and  entitled  to  demand  and  recover 
the  amount  due  upon  it,  James  v.  Chalmers,  5  Sandf.  52  ;  S. 
C,  6  N.  Y.  (2  Seld.)  209  ;  Mauran  v.  Lamb,  7  Cow.  174.  Where 
the  holder  dies  before  the  note  or  bill  becomes  due,  it  ought  to  be 
presented  by  his  legal  representatives.  And  so,  where  the  holder 
has  assigned  his  personal  estate  for  the  benefit  of  his  creditors, 
the  presentment  should  be  made  by  his  assignee.  Jones  v.  Fort, 
9  Barn.  &  Cress.  764.  And  where  a  bill  or  note  is  turned  out  on 
a  sale  of  goods,  or  as  a  collateral  security,  or  for  collection,  there 
is  an  implied  agreement  on  the  part  of  the  person  receiving  such 
bill  or  note,  that  he  will  present  it  in  proper  time  for  payment, 
and  that  he  will  take  the  necessary  steps  to  charge  the  parties 
thereto  ;  and  if  he  neglects  or  refuses  to  do  so,  he  will  be  liable 
for  the  loss  resulting  therefrom  to  the  party  turning  out  the  paper. 
Jones  V.  Savage,  6  Wend.  658 ;  Allen  v.  Suydam,  20  id.  321 ; 
Walker  v.  Bank  of  State  of  New  York,  9  N.  Y.  (5  Seld.)  582  ; 
Dayton  v.  Trull,  23  Wend.  345. 

The  note  or  bill  ought,  as  a  general  rule,  to  be  presented  to 
the  same  persons,  at  the  same  place,  and  in  the  same  manner,  as 
is  requisite  in  the  presentment  for  acceptance.  Ante,  618.  If  a  bill 
is  addressed  to  the  drawee  at  a  particular  place,  and  accepted  in 
general  terms,  it  will  be  sufficient  to  present  it  for  payment  at 
the  place  designated,  within  the  usual  hours  of  business;  and 
if  that  place  is  closed,  and  there  is  no  person  there  to  give  an 


638  BILLS  AND  NOTES. 

answer  respecting  tlie  bill,  the  demand  will  charge  the  parties 
liable  in  case  of  a  legal  demand.  De  Wolf  v.  Murray,  2  Sandf. 
166.  So,  where  a  note  is  made  payable  at  a  particular  bank,  in 
which  the  maker  has  no  funds,  and  the  note  is  delivered  after 
business  hours,  on  the  la,st  day  of  grace,  to  the  teller  of  the  bank, 
who  is  also  a  notary,  a  demand  by  such  teller  on  the  steps  of  the 
bank,  which  is  then  closed,  will  be  sufficient  to  charge  an  indorser. 
BanJc  of  Syracuse  v.  Hollister,  17  N.  Y.  (3  Smith)  46. 

Where  a  bill  or  note  is  drawn  payable  at  a  particular  place, 
and  there  is  an  action  upon  it  against  the  drawer  or  indorser,  it 
will  be  necessary  to  show  that  a  presentment  was  made  at  the 
place  named.  Seneca  County  BanJc  v.  Neass,  5  Denio,329  ;  Wood- 
worth  V.  BanJc  of  America,  19  Johns.  391.  A  note  payable  at  a 
particular  bank  is  sufficiently  demanded  if  it  is  left  therefor  col- 
lection on  the  day  it  becomes  due  ;  where  the  note  is  payable  at 
a  particular  place,  no  personal  demand  is  essential ;  it  is  the 
business  of  the  maker  to  furnish  funds  at  the  place,  ready  to  take 
up  the  paper  on  presentation  on  the  day  it  falls  due  ;  and  if  the 
holder  or  his  agent  is  there  with  it,  so  that  he  is  in  a  situation  to 
receive  the  money,  and  give  up  the  note,  that  will  be  sufficient. 
Troy  City  Bank  v.  Grant,  Hill  &  Denio,  119,  120  ;  Ogden  v. 
Dohhin,  2  Hill,  112 ;  Nichols  v.  Goldsmith,  7  Wend.  160  ;  Gil- 
lett  V.  Averill,  5  Denio,  85.  If  a  bank  is  the  owner  of  a  bill  or 
note  payable  there,  the  presumption  will  be,  in  the  absence  of 
proof  of  the  contrary,  that  the  instrument  was  at  the  bank  ready 
to  be  delivered  up  on  payment. 

If  a  bill  or  note  is  pa3^able  at  a  specified  bank,  the  demand  of 
payment  must  be  made  at  the  bank ;  and  it  will  not  be  sufficient 
to  show  that  the  note  was  presented  to  the  cashier ;  it  must 
appear  that  it  was  presented  at  the  bank.  Seneca  County  BanJc  v. 
Neass,  5  Denio,  329  ;  S.  C,  3  Comst.  442.  If  a  promissory  note 
is  made,  or  a  bill  of  exchange  is  accepted  by  several  persons  who 
are  not  partners,  a  demand  of  payment  must  be  made  upon  each 
of  them,  in  the  usual  manner  personally,  or  at  his  dwelling- 
house,  or  his  place  of  business. 

The  demand  of  paymejit  may  be  made  upon  the  maker  or 
acceptor  personally  ;  but  it  must  be  made  at  a  reasonable  time 
and  place.  The  legal  presumption  is,  that  the  maker  or  acceptor 
is  prepared  at  his  residence  or  place  of  business  to  pay  such  an 
instrument ;  and  if  a  demand  is  made  in  the  street,  while  the 
maker  or  acceptor  offers  to  pay  it  at  his  residence  or  place  of 
business,  the  person  making  the  demand  is  bound  to  give  him 
an  opportunity  to  do  so. 


BILLS  AND  NOTES.  639 

A  bill  or  note  ought  to  be  actually  presented  for  payment ;  it 
should  be  shown  to  the  maker  or  acceptor,  and  payment  thereof 
demanded,  unless  in  the- case  of  a  bill  or  note  payable  at  a  par- 
ticular bank  or  place.  Ante^  623.  If  a  demand  is  made  by  a  person 
who  has  not  the  bill  or  note  in  his  possession  the  demand  will 
not  be  sufficient.  Musson  v.  Lake^  4  How.  (U.  S.)  262.  The  instru- 
ment itself  ought  to  be  produced  and  exhibited ;  for  an  acceptor 
has  a  right  to  see  the  bill  before  he  determines  whether  he  will 
pay  it  or  not ;  and  if  he  paj^s  it,  he  has  a  right  to  demand  its 
delivery  to  him  as  a  voucher  in  his  settlement  with  the  drawer. 
Bank  of  Yergennes  v.  Cameron,  7  Barb.  143, 146.  So,  the  maker 
of  a  promissory  note  has  a  right  to  demand  the  surrender  of  a 
promissory  note  on  its  payment  by  him.  Both  the  bill  and  the 
note  being  negotiable  instruments,  neither  the  maker  nor  the 
acceptor  is  bound  to  pay  it  without  receiving  the  note  or  bill  as 
his  voucher,  or  evidence  that  it  is  not  outstanding  in  the  hands 
of  some  other  person.  Smith  v.  HocJuoell,  2  Hill,  482.  So,  an 
indorser,  on  tendering  the  amount  due  on  a  note,  has  a  right 
to  insist  upon  its  delivery  to  him.  Wilder  v.  Seelye,  8  Barb.  408  ; 
See  ab  ove. 

When  a  bill  or  a  negotiable  note  has  been  lost,  the  present- 
ment may  be  made  by  copy,  or  by  a  statement  in  writing  describ- 
ing the  instrument ;  but,  in  order  to  charge  the  indorser  of  such 
a  lost  bill  or  note,  the  holder  must  tender  an  indemnity  to  both 
the  maker  and  the  indorser  at  the  time  of  the  demand,  because 
as  the  former  is  not  bound  to  make  payment  without  the  produc- 
tion of  the  note,  or  indemnity  in  case  of  its  loss,  for  that  very 
reason  payment  ought  not  to  be  required  of  the  latter  until  the 
proper  steps  have  been  taken  to  secure  his  immediate  recourse 
against  his  principal.  Smith  v.  Rockwell,  2  Hill,  482  ;  Rowley 
V.  Ball,  3  Cow.  303  ;  Kirhy  v.  Sisson,  2  Wend.  550  ;  Ramuz  v. 
Crowe,  1  Exch.  167,  174,  note.  If  the  indorser  sustains  any  injury 
in  consequence  of  the  holder' s  neglect  in  this  respect,  it  will  be 
a  good  defense  to  an  action  on  the  instrument.  lb.  If  the  note 
is  not  lost,  though  it  is  supposed  to  be  at  the  time  of  making  the 
demand,  it  will  be  sufficient  to  produce  it  at  the  trial.  lb. 

If  the  holder  of  a  bill  or  note  would  charge  the  drawer  or 
indorser  thereof,  he  must  present  the  instrument  and  demand 
payment  on  the  very  day  on  which  it  is  legally  payable.  Where 
a  note  is  payable  on  demand,  or  it  specifies  no  time  of  payment, 
it  is  deemed  to  be  due  immediately,  and  the  statute  of  limita- 
tions begins  to  run  against  it  from  the  day  of  its  date.    Wenmaii 


640  BILLS  AND  NOTES. 

V.  Moliaiok  Ins.  Co.,  13  Wend.  267 ;  Cornell  v.  Moulton,  3  Denio, 
12 ;  Norton  v.  Ellam,  2  Mees.  &  Wels.  461  ;  Tliom'pson  v. 
Ketcham,  8  Johns.  190  ;  Herrick  v.  Bennett.,  id.  374.  Where  a 
note  is  payable  on  demand,  a  demand  must  be  made  within  a 
reasonable  time  in  order  to  charge  the  indorser.  Sice  v.  Cun- 
ningham,  1  Cow.  397 ;  Furman  v.  Hasliin,  2  Caines,  369 ;  San- 
ford  V.  MicMes,  4  Johns.  224.  But  where  a  note  is  payable  on 
demand,  with  interest,  it  is  a  continuing  security,  from  which 
none  of  the  parties  are  discharged  until  it  is  dishonored  by  an 
actual  presentment  and  a  refusal  to  pay.  Comstock,  J.,  in  Mer- 
ritt  V.  Todd,  23  N.  Y.  (9  Smith)  28,  34 ;  WetTiey  v.  Andrews,  3 
Hill,  582 ;  Weeks  v.  Pryor,  27  Barb.  79.  Where  the  parties  to 
a  note  have  their  places  of  business  in  the  same  street  of  the 
same  city,  a  note  payable  on  demand  with  interest,  which  is 
transferred  nearly  three  months  after  date,  is  subject,  in  the 
hands  of  the  transferee,  to  any  defense  which  existed  in  behalf 
of  the  makers  against  the  payee  before  the  transfer.  Herrick  v. 
Woolxierton,  41  N.  Y.  (2  Hand)  581 ;  1  Am.  Kep.  161.  A  prom- 
issory note,  payable  on  demand,  whether  with  or  without  inter- 
est, is  barred  by  the  statute  of  limitations,  if  not  brought  within 
six  years  after  its  date.  Wheeler  v.  Warner,  47  N.  Y".  (2  Sick.) 
519  ;  7  Am.  Rep.  478. 

Before  a  holder  of  a  bill  or  note  can  safely  make  a  demand  of 
payment,  it  is  important  to  know  when  that  demand  is  to  be 
made,  and  for  that  purpose  he  must  ascertain  on  what  day  the 
law  determines  or  declares  the  instrument  to  be  due  and  payable. 
When  checks,  bills  or  drafts  are  payable  on  demand,  they  are 
payable  immediately,  and  without  any  demand  before  suit 
brought.  lb.  ;  Haxtun  v.  Bishop,  3  Wend.  13,  23,  note. 

It  is  a  general  rule  that  notes  which  are  not  negotiable  are  not 
entitled  to  days  of  grace.  Notes  not  negotiable  are  such  as  are 
not  drawn  in  negotiable  terms  ;  such  as  are  payable  in  chattels  ; 
and  such  as  are  not  recognized  as  negotiable  either  by  statute  or 
by  custom. 

Where  a  bill  or  note  is  drawn  payable  at  a  specified  time,  as 
on  a  certain  future  day,  or  a  given  number  of  days  after  date, 
after  sight,  after  demand,  or  on  any  other  particular  day,  men- 
tioned in  such  bill  or  note,  it  is  not  payable  at  the  time  the  words 
naturally  import,  but  the  acceptor  or  the  maker  has  until  the 
third  day  after,  and  exclusive  of  the  day  expressed,  in  which  to 
make  payments ;  and  he  has  the  whole  of  this  third  day  in  which 
to  pay,  and  no  action  can  legally  be  brought  against  him  until 


BILLS  AND  NOTES.  641 

the  next  day.  The  maker  of  a  promissory  note  has  the  whole  of 
the  last  day  of  grace  in  which  to  pay  it ;  and,  if  it  is  payable  at 
a  bank,  no  action  can  legally  be  commenced  on  it  against  the 
maker  on  the  last  day  of  grace,  even  though  it  is  commenced 
after  the  banking  hours  of  the  bank  at  which  it  is  payable. 
Smith  V.  Aylesworih^  40  Barb.  104 ;  Oshorn  v.  Monoure,  3  Wend. 
170  ;  Oothout  v.  Ballard^  41  Barb.  33.  Thus,  where  a  bill  or  note 
is  made  payable  on  the  first  day  of  any  particular  month,  it  will 
not  be  due  until  the  fourth  day  of  that  month ;  and  an  action 
cannot  properly  be  brought  upon  it  until  the  fifth.  Cornell  v. 
Moulton,  3  Denio,  12  ;  MeGraw  v.  Walker,  2  Hilt.  404. 

"All  bills  of  exchange  or  drafts,  drawn  payable  at  sight,  at 
any  place  within  this  State,  shall  be  deemed  due  and  payable  on 
presentation,  without  any  days  of  grace  being  allowed  thereon." 
Laws  1857,  ch.  416,  §  1. 

"All  checks,  bills  of  exchange  or  drafts,  appearing  upon  their 
face  to  have  been  drawn  upon  any  bank,  or  upon  any  banking 
association,  or  individual  banker,  carrying  on  banking  business 
under  the  act  to  authorize  the  business  of  banking,  which  are 
on  their  face  payable  on  any  specified  day,  or  in  any  number  of 
days  after  the  date  or  sight  thereof,  shall  be  deemed  due  and 
payable  on  the  day  mentioned  for  the  payment  of  the  same, 
without  any  days  of  grace  being  allowed,  and  it  shall  not  be 
necessary  to  protest  the  same  for  non-acceptance."  lb.,  §  2.  This 
act  only  abolishes  grace  upon  bills  which  are  "  on  their  face 
payable  on  a  specified  day,  or  in  any  number  of  days  or  sight 
thereof  after  the  date.  It  does  not  include  bills  payable  upon 
their  face  in  months  or  years.  Commercial  Bank  of  Kentucky 
V.  Yarnum,  49  N.  Y.  (4  Sick.)  269.  A  draft  for  money  payable 
at  a  day  which  is  subsequent  to  its  date  is  a  bill  of  exchange, 
and  entitled  to  days  of  grace.  Bowen  v.  Newell,  8  N.  Y.  (4 
Seld.)  190.  A  bill  of  exchange,  drawn  payable  at  sight,  is  due 
and  payable  on  presentment  to  the  drawee,  in  the  absence  of 
evidence  of  a  local  custom  to  change  the  rule.  Nash  v.  Mar- 
tin, 1  E.  D.  Smith,  605  ;  9  N.  Y.  Leg.  Obs.  368. 

ARTICLE  XIV. 

payment;  by  whom. 

Section  1.  In  general.    The  makers  of  a  promissory  note  and 
the  acceptors  of  a  bill  of  exchange  or  draft  are  the  persons  pri- 
marily liable  to  pay  it  at  its  maturity  ;  and  payment  thereof  by 
Vol.  L  — 81 


642  BILLS  AND  NOTES. 

sucli  makers  or  acceptors  discharges  them  and  the  indorsers,  and 
cancels  the  instrument.  Suydam  v.  Westfall,  2  Denio,  205.  The 
payment  of  a  bill  or  note  by  an  indorser  is  a  satisfaction  of  it 
only  in  respect  to  subsequent  indorsers ;  for  a  bill  is  not  dis- 
charged and  finally  extinguished  until  paid  by  or  on  behalf  of 
the  acceptor  ;  nor  a  note  until  paid  by  or  on  behalf  of  the  maker. 
And,  therefore,  when  an  indorser  takes  up  a  dishonored  note  or 
bill,  he  is  at  liberty  to  put  it  again  into  circulation;  whereas  a 
payment  by  the  maker  of  a  note  or  the  acceptor  of  a  bill  dis- 
charges it  so  that  it  is  no  longer  negotiable.  Havens  v.  Hunt- 
ington^ 1  Cow.  387.  Payment  ought  to  be  made  to  the  holder  or 
real  owner  of  the  bill  or  note,  or  to  some  person  authorized  by 
him  to  receive  it,  and  to  one  who  has  the  title  and  possession  of 
it.  Canal  Bank  v.  BanTc  of  Albany,  1  Hill,  287;  Morgan  v. 
Bank  of  State  of  New  York,  11  N.  Y.  (1  Kern.)  404;  Davis  v. 
Miller,  14  Gratt.  1 ;  Favenc  v.  Bennett,  11  East,  40.  When  a 
bill  or  note  is  payable  to  bearer,  or  if  payable  to  order  and  in- 
dorsed in  blank,  so  that  the  title  passes  by  the  mere  act  of  deliv- 
ery, possession  alone  is  presumptive  evidence  of  title  and  a 
sufficient  authority  to  demand  and  receive  payment.  James  v. 
Chalmers,  5  Sandf.  52;  S.  C,  6  N.  Y.  (2  Seld.)  209;  Seeley  v. 
JEngell,  17  Barb.  530.  And  whenever  the  person  presenting  a 
bill  or  note  has  a  right  to  demand  its  payment,  the  maker  or 
acceptor  is  clearly  authorized  to  pay  it  to  such  person. 

There  are  cases  in  which  payment  may  properly  be  made  to 
the  holder  of  a  bill  or  note,  even  when  it  was  obtained  fraudu- 
lently or  feloniously  from  the  true  owner.  And  the  maker  or 
acceptor  will  be  protected  in  paying  a  note  or  bill  to  the  party 
who  presents  it,  if  he  holds  it  under  such  circumstances  as  will 
give  him  a  right  of  action  thereon  as  a  purchaser  in  good  faith 
and  for  value.    Stalker  v.  McDonald,  6  Hill,  93. 

Before  paying  a  bill  or  note  the  maker  or  acceptor  ought  to 
take  care  and  ascertain  that  the  indorsements  are  genuine,  and 
that  they  are  sufficient  to  transfer  the  title  to  the  person  who 
demands  payment.  If  the  indorsements  on  the  note  or  bill  are 
in  blank,  it  is  only  necessary  to  know  that  the  payee's  indorse- 
ment is  genuine;  but  if  there  are  several  successive  special  in- 
dorsements, the  party  paying  ought  to  be  certain  that  all  of  these 
indorsements  are  genuine,  since  the  holder  cannot  acquire  any 
titje  through  a  forged  indorsement.  Graves  v.  America7i  Ex- 
change Bank,  17  N.  Y.  (3  Smith)  205;  Canal  Bank  v.  Bank  of 
Albany,  1  Hill,  287.    Thus,  where  the  payee  of  a  note,  drawn 


BILLS  AND  NOTES.  643 

payable  to  him  or  order,  indorses  it  specially  payable  to  A,  or 
order,  who  then  indorses  it  specially  payable  to  B,  or  order,  in 
such  a  case  the  title  to  the  note  is  in  B,  and  no  other  person  has 
a  legal  right  to  demand  payment  of  it,  except  as  his  agent.  Bur- 
dick  V.  Green,  15  Johns.  247;  Strong  v.  Stevens,  4  Duer,  668. 
But  where  the  payee  indorses  the  instrument  in  blank,  the  rule 
is  otherwise,  even  though  there  are  subsequent  special  indorse- 
ments on  the  note,  because  the  holder  is  entitled  to  deduce  his 
title  through  the  first  indorser,  and  therefore  the  maker  is  pro- 
tected in  paying  the  money  to  the  party  who  has  it  in  possession, 
in  the  same  manner  as  though  the  note  had  originally  been  made 
payable  to  the  bearer.  WatervUet  Bank  v.  White,  1  Denio,  608. 
The  drawee  of  a  bill  of  exchange  is  bound  to  know  the  hand- 
writing of  his  correspondent,  the  drawer,  and  if  he  accepts  or 
pays  a  bill  in  the  hands  of  a  honafide  holder  for  value,  he  is  con- 
cluded by  the  act,  although  the  bill  turns  out  to  be  a  forgery. 
If  he  has  accepted,  he  must  pay;  and  if  he  has  paid,  he  cannot 
recover  the  money  back.  Goddard  v.  Merchants'  Bank,  4  Comst. 
147;  S.  C,  2  Sandf.  247 ;  Graves  v.  American  Exchange  Bank, 
17  N.  Y.  (3  Smith)  205.  So,  if  a  bank  pays  a  forged  check,  or  a 
check  which  has  a  genuine  signature  but  which  has  been  fraud- 
ulently altered  to  a  larger  sum,  it  cannot  charge  the  drawer  with 
the  sum  so  paid  without  authority.  Weisser  v.  Denison,  10  N. 
Y.  (6  Seld.)  68;  Morgan  v.  Bank  of  the  State  of  New  York,  1 
Kern.  404;  Hall  v.  Fuller,  5  Barn.  &  Cress.  750. 

If  a  bank  check  has  not  been  cashed,  or  if  a  bill  or  draft  has 
not  been  accepted,  the  check  ought  not  to  be  paid,  nor  the  draft 
or  bill  accepted,  where  the  drawer  countermands  the  authority 
and  gives  notice  thereof  to  the  bank,  or  the  drawee,  before  pay- 
ment or  acceptance. 

As  we  have  already  seen,  ante,  546,  bills  and  notes  to  be  negoti- 
able must  be  payable  in  money,  and  therefore  nothing  but  a  money 
payment  will  be  a  legal  tender  in  discharge  of  the  debt.  If,  how- 
ever, a  party  chooses  to  receive  payment  in  any  other  article  he 
may  do  so.  And  where  the  note  is  payable  in  goods,  as  in  the 
case  of  a  chattel  note,  then  the  payment  may  be  made  according 
to  the  terms  of  the  note.     See  "  Chattel  Note." 


644  BILLS  AND  NOTES. 


ARTICLE  XV. 

PROCEEDINGS  OK  NON-PAYMENT.      NOTICE. 

Section  1.  In  generaL  The  holder  of  a  bill  or  note  is  bound 
to  present  it  for  payment,  and  to  give  the  drawer  and  indorsers 
due  notice  of  the  dishonor  if  it  is  not  duly  paid ;  and  an  omis- 
sion, neglect,  or  refusal  to  do  so  is  a  discharge  of  the  drawer  and 
indorsers. 

The  law  does  not  require  that  the  notice  shall  be  given  in  any 
particular  form  or  set  of  words;  it  will  be  sufficient  if  the  lan- 
g-uage  employed  is  such  as  in  express  terms  or  by  necessary 
implication  to  convey  notice  to  the  drawers  and  indorsers  of  the 
identity  of  the  bill  or  note,  and  that  payment  of  it  on  due  pre- 
sentment has  been  neglected  or  refused  by  the  maker  or  acceptor. 
Hodges  Y.  Shuler,  24  Barb.  m\  S.  C,  22  N.  Y.  (8  Smith)  114; 
Cook  V.  Litchfield,  9  id.  (5  Seld.)  279  ;  Cayuga  County  Bank  v. 
Warden,  1  Comst.  413 ;  Cook  v.  Litchfield,  2  Bosw.  137 ;  Daven- 
port V.  Gilbert,  4  id.  532  ;  S.  C,  again,  6  id.  179.  The  notice  will 
be  valid  whether  verbal  or  in  writing,  although  a  written  notice 
will  almost  invariably  be  preferred.  Butt  v.  Hoge,  2  Hilt.  81 ; 
Woodin  V.  Foster,  16  Barb.  146;  Cuyler  v.  Stevens,  4  Wend.  566. 
The  bill  or  note  dishonored  ought  to  be  so  described  in  the  notice 
that  the  drawer  or  indorsers  may  know  what  instrument  is  in- 
tended; and  if  the  notice  correctly  gives  the  date,  time  of  pay- 
ment, amount,  names  of  maker,  and  of  the  payees,  and  of  the 
indorsement,  of  a  promissory  note,  this  will  be  sufficient  although 
it  does  not  state  the  number  of  the  note,  and  although  it  appears 
that  there  were  three  or  four  other  notes  precisely  like  it  out- 
standing at  the  time  of  giving  the  notice,  and  although,  also,  the 
number  was  the  only  means  of  precisely  identifying  the  note. 
Hodges  v.  Shuler,  24  Barb.  68;  S.  C,  22  N.  Y.  (8  Smith)  114.  If 
the  notice  gives  the  names  of  the  makers  and  indorsers  of  a  prom- 
issory note,  with  the  amount  thereof,  this  is  a  sufficient  descrip- 
tion in  the  absence  of  evidence  showing  that  there  were  other 
notes  to  which  the  notice  would  apply.  Youngs  v.  Lee,  18 
Barb.  187;  S.  C,  12  N.  Y.  (2  Kern.)  551.  A  statement  in  such 
notice  that  the  note  had  been  protested  for  non-payment  is  a 
sufficient  notice  of  a  presentment  and  demand  of  payment  at  the 
time  and  place  of  payment.  lb.  But  if  the  notice  of  non-pay- 
ment does  not  state  the  name  of  the  maker  of  the  promissory 
note  dishonored,  it  will  not  be  sufficient  to  charge  the  indorser. 


BILLS  AND  NOTES.  645 

Home  Insurance  Company  v.  Green,  19  N.'  Y.  (5  Smith)  518.  If 
the  notice  possesses  the  usual  legal  requisites,  but  it  misdescribes 
the  bill  or  note  to  which  it  refers,  it  is  to  be  determined  as  a 
matter  of  fact,  upon  the  circumstances  of  the  case,  whether  the 
indorser  or  drawer  could  be  misled  by  such  misdescription. 
McKnight  v.  Lewis,  5  Barb.  681. 

And  if  there  is  a  misdescription  in  some  of  the  particulars,  it 
may  be  shown  that  there  was  at  the  time  of  giving  the  notice  no 
other  note  in  existence  to  which  the  description  could  apply. 
Cayuga  County  Bank  v.  Warden,  1  Comst.  413;  S.  C,  again,  6 
N.  y.  (2  Seld.)  19.  And  when  the  notice,  in  connection  with 
such  evidence,  identifies  the  note  with  reasonable  certainty,  it 
will  be  sufficient  to  charge  the  indorsers.  lb.  It  is  not  necessary 
that  the  notice  should  state  who  is  the  owner  of  the  bill  or  note, 
or  at  whose  request  it  is  given.  The  indorser  is  bound  to  pay 
the  true  owner  or  holder,  and  he  can  ascertain  that  fact  at  the 
time  of  paying  it. 

The  statute  of  1857,  which  is  quoted,  ante,  629,  allows  notice  of 
non-acceptance  or  non-payment  to  be  served  on  the  drawer  or 
indorser  of  negotiable  paper  whenever  his  residence  or  place  of 
business,  as  ascertained  on  inquiry  or  when  designated  on  the 
paper,  is  in  the  city  or  town  where  the  note,  draft  or  check  is 
presented  for  acceptance  or  payment,  by  depositing  them  in  the 
post-office  addressed  to  him  there,  with  postage  prepaid. 

This  statute  of  185T,  relative  to  the  protest  of  notes,  only  alters 
the  law  as  to  the  service  of  notices  of  protest,  when  the  indorser 
resides  or  has  a  place  of  business  in  a  city  or  town,  or  when  he 
is  reported  to  reside  or  have  a  place  of  business  therein,  on  dili- 
gent inquiry.  In  such  cases,  the  notice  may  be  by  notice  in  the 
post-office.  Randall  v.  Smith,  84  Barb.  452.  But  where  there 
is  no  evidence  of  any  diligence  to  find  the  residence  of  the  in- 
dorser, or  even  of  any  inquiries  upon  the  subject,  this  statute 
does  not  apply.  lb.  And  where  a  note  was  dated  in  New  York, 
and  the  plaintiffs  were  informed  that  the  indorser  resided  on 
Long  Island,  it-was  held  that  this  was  sufficient  to  put  them  upon 
inquiry  sufficient  to  satisfy  them  that  he  did  not  reside  in  New 
York.  lb. 

Before  the  enactment  of  the  law  of  1857,  the  settled  rule  was, 
that  when  the  indorser  resided  in  the  same  place  where  the  pre- 
sentment or  4«niand  was  to  be  made,  the  notice  to  the  indorser 
must  be  served  on  him  personally,  or  by  leaving  it*  at  his  resi- 
dence or  place  of  business.     Eddy  v.  Jump,  6  Duer,  492.    The 


646  BILLS  AND  NOTES. 

only  exception  to  that  rule  is,  that  when  the  indorser  lived  in  the 
same  city  or  town  in  which  the  demand  was  to  be  made,  but  at 
some  remote  point  from  the  place  of  presentment,  between  which 
there  was  a  communication  by  mail,  the  notice  might  have  been 
served  by  mailing  it  to  him,  directed  to  him  at  a  post-office  where 
he  usually  received  his  letters  or  papers.  lb.  Where  the  service 
of  the  notice  is  made  by  mail,  the  holder  ought  to  be  careful  that 
his  letter  containing  it  is  properly  directed,  for  if  any  delay 
occurs  through  his  neglect  or  want  of  care  in  this  respect,  it  will 
discharge  the  party  entitled  to  notice. 

The  law  does  not  require  that  notice  shall  be  brought  home  to 
the  indorser,  nor  that  it  shall  be  directed  to  his  place  of  residence. 
It  is  sufficient  if  the  holder  of  a  bill  or  note  make  diligent  inquiry 
for  the  drawer  or  indorser,  and  then  acts  upon  the  best  informa- 
tion which  he  is  able  to  obtain.  Libby  v.  Adams ^  32  Barb.  542  ; 
Beale  v.  Parish,  24  id.  243  ;  S.  C,  6  E.  P.  Smith,  408 ;  Mechan- 
ics^ Banking  Association  v.  Place,  4  Duer,  212. 

In  relation  to  the  time  when  the  notice  must  be  served,  the 
rule  is,  that  the  party  who  is  sought  to  be  charged  upon  the  bill 
or  note  is  entitled  to  prompt  notice  of  its  dishonor  by  the  maker 
or  acceptor.  When  the  parties  live  in  the  same  town,  it  is  said 
that  notice  must  be  given  in  time  to  be  received  in  the  course  of 
the  next  day  after  the  dishonor  of  the  bill  or  note,  or  after  the 
party  giving  the  notice  had  himself  received  notice  of  dishonor. 
There  must  be  due  diligence,  not  that  a  party  is  bound  to  neglect 
all  other  business,  and,  the  moment  he  receives  notice,  send  a 
notice  to  those  whom  he  intends  to  charge.  He  has  a  whole  day, 
and  so  much  more  as  will  enable  him,  by  the  use  of  diligence,  to 
communicate  the  notice  to  the  party  sought  to  be  charged.  A 
day  is  not  in  all  cases  the  limit.  If  there  are  many  indorsers, 
and  the  notice  in  fact  travels  through  them  all,  if  there  has  been 
no  want  of  diligence  between  any  two  of  them,  whatever  time 
may  have  been  occupied,  the  notice  will  be  good.  The  rule  is 
not  that  each  indorser  has  a  day;  but  the  rule  is,  that  due  dili- 
gence shall  he  observed,  in  the  actual  state  of  circumstances 
under  which  the  notice  is  given.  Howe  v.  Tipper,  13  C.  B.  249, 
256 ;  BanJc  of  TJtica  v.  Smith,  18  Johns.  231 ;  Howard  v.  Ives,  1 
Hill,  263 ;  Mead  v.  Engs,  6  Cow.  303 ;  Banlc  of  United  States  v. 
Dams,  2  Hill,  451. 

There  must  be  a  proper  demand  of  payment  and  refusal  thereof, 
before  notice  of  dishonor  can  legally  be  given,  and  a  notice 
before  that  time  is  a  nullity.    JacTcson  v.  Richards,  2  Caines, 


BILLS  AND  NOTES.  647 

343 ;  Oriffin  v.  Goff,  12  Johns.  423.  After  a  bill  has  in  fact  been 
dishonored,  a  notice  of  dishonor  given  by  a  party  to  the  bill,  in 
terms  unequivocally  asserting  the  dishonor,  is  valid,  although 
the  party  giving  the  notice  had  no  certain  knowledge  of  the  fact 
of  the  dishonor.     Jennings  v.  Roberts,  4  Ell.  &  Bla.  615. 

Where  a  bill  of  exchange  has  been  presented  and  dishonored, 
the  holder  may  either  resort  to  his  immediate  indorser,  giving 
him  due  notice  of  dishonor,  or  he  may  resort  to  any  or  all  of  the 
other  indorsers  or  prior  parties  intermediate  between  him  and 
the  acceptors,  whose  names  appear  upon  the  bill,  giving  to  each 
of  these  parties  respectively,  notice  of  dishonor  in  the  same  man- 
ner as  if  each  were  the  sole  indorser  ;  subject,  however,  to  this 
qualification,  that  the  holder  may  avail  himself  of  any  notice 
which  has  been  given  in  due  time  by  any  previous  indorser,  who, 
at  the  time  of  giving  such  notice,  was  under  liability  to  the 
holder.  LysagJit  v.  Bryant,  9  C.  B.  46  ;  Harrison  v.  Ruscoe, 
15  Mees.  &  Wels.  231 ;  Chapman  v.  Keane,  3  Ad.  &  El.  193 ; 
Head  V.  Engs,  5  Cow.  303 ;  Stafford  v.  Tates,  18  Johns.  327. 
But  although  notice  of  non-payment,  when  given  by  the  holder 
of  a  note  to  an  indorser,  will  inure  to  the  benefit  of  other  par- 
ties to  the  paper,  and  though  an  inability  to  learn  the  proper 
place  for  giving  such  notice  will  excuse  the  holder  from  giving 
such  notice,  yet  such  excuse  will  not  be  available  to  another 
indorser  who  possesses  the  necessary  information.  Beale  v. 
ParrisJi,  20  N.  Y.  (6  Smith)  407.  But  such  ignorance  excuses 
the  giving  the  notice  so  long  only  as  the  cause  continues,  and 
whenever  the  party  has  the  proper  information  for  correctly  serv- 
ing the  notice,  a  duty  arises  which  requires  a  proper  service, 
and  if  it  is  omitted,  the  holder  will  be  held  responsible  in  the 
same  manner  as  though  negligent  in  the  first  instance.  lb. 

Where  a  bill  or  note  is  indorsed  by  several  indorsers,  each  of 
them  is  liable  thereon  in  the  order  in  which  his  name  stands  on 
the  instrument,  and  any  one  of  the  latter  indorsers  may  take 
up  the  note  at  maturity  and  maintain  an  action  against  any  one 
of  those  who  indorsed  before  he  did.  Bradford  v.  Corey,  5 
Barb.  461  ;  Leonard  v.  Barker,  5  Denio,  220  ;  Corey  v.  White,  3 
Barb.  12  ;  Barker  v.  Cassidy,  16  id.  177 ;  Hays  v.  Phelps,  1 
Sandf.  64.  But  a  subsequent  indorser  cannot  maintain  a  joint 
action  against  prior  indorsers  who  indorsed  severally,  if  the 
action  is  brought  against  them  for  the  recovery  of  money  paid 
for  them  by  the  plaintiff.  Barker  v.  Cassidy,  16  Barb.  177.  Nor 
can  the  payee  and  first  indorser  of  a  note  recover  against  a  second 


648  BILLS  AND  NOTES. 

or  subsequent  indorser  thereof,  either  in  an  action  upon  the  note 
itself,  or  upon  allegation  and  proof  of  a  verbal  agreement  which 
was  to  render  such  second  or  subsequent  indorser  liable  to  the 
first  indorser.  Hauck  v.  Hund,  1  Bosw.  431  ;  Bradford  v.  Mar- 
tin, 3  Sandf.  647  ;  Lester  v.  Paine,  39  Barb.  616.  And  it  has 
been  held  that  it  will  not  make  any  difference  as  to  the  rule, 
even  where  the  second  indorser  puts  his  name  on  the  note  before 
the  first  indorser  did.  lb.    But  see  the  cases  cited,  ante,  601. 

The  holder  of  a  bill  or  note  ought  to  give  notice  of  its  dishonor 
to  all  the  parties  to  whom  he  intends  to  look  for  payment ;  but 
it  will  be  sufficient  if  he  gives  due  notice  to  his  immediate  indor- 
ser for  the  purpose  of  charging  him  ;  and  it  is  the  business  of 
each  indorser  to  see  that  his  immediate  indorser  is  properly 
notified.  Morgan  v.  Woodsworth,  3  Johns.  Gas.  89 ;  Bank  of 
Utica  V.  Smith,  18  Johns.  230  ;  Bank  of  U.  S.  v.  Davis,  2  Hill, 
451.  If  the  holder  is  not  satisfied  with  the  responsibility  of  his 
immediate  indorser,  his  proper  course  is  to  give  notice  to  all  the 
parties  to  whom  he  intends  to  look  for  indemnity  on  the  instru- 
ment. If  a  note  is  indorsed  by  a  firm,  notice  to  one  partner  is 
notice  to  all  of  them.  Willis  v.  Green,  5  Hill,  232  ;  Bank  of 
Chenango  v.  Hoot,  4  Cow.  126. 


BILLS  OF  PEACE.  649 


CHAPTER  XXV. 

BILLS  OF  PEACE. 

TITLE  L 

NATURE    OF   THE   REMEDY    BY,  AND    IN    WHAT    CASES 

ALLOWED. 

ARTICLE  L 

* 

WHEN"   THE    REMEDY    WILL   LIE. 

Section  1,  Nature  of  the  remedy.  A  bill  of  peace,  teclinically 
80  called,  is  an  equitable  remedy  which  sometimes  bears  a  close 
resemblance  to  a  bill  in  equity  quia  timet.  The  latter  is,  how- 
ever, distinguishable  from  the  former  in  various  respects,  as  will 
hereafter  be  seen,  and  is  usually  applied  to  prevent  wrongs  or 
anticipated  mischiefs  before  the  actual  commencement  of  a  suit; 
whereas,  a  bill  of  peace  is  usually  brought  after  the  right  of  the 
complainant  has  been  established  at  law.  It  is  founded  upon 
the  equity,  that  if  the  right  be  established  at  law,  it  is  entitled 
to  adequate  protection.  Bond  v.  Little^  10  Ga.  395  ;  Dedman  v. 
Chiles,  37  B.  Monr.  (Ky.)  426 ;  Qunn  v.  Harrison,  7  Ala.  585. 
The  ends  sought  to  be  attained  by  the  remedy  are,  to  procure 
repose  from  perpetual  litigation,  and  to  prevent  a  multiplicity 
of  suits ;  and  the  bill  may  be  filed  for  securing  an  established 
legal  title  against  the  vexatious  recurrence  of  litigation,  whether 
by  a  numerous  class  insisting  on  the  same  right,  or  by  an  indi- 
vidual reiterating  an  unsuccessful  claim.  See  Adams'  Eq.  199  ; 
Eldridge  v.  Hill,  2  Johns.  Ch.  281  ;  8heffi.eld  Water  Worl'S  v. 
Yeomans,  *L.  R.,  2  Ch.  App.  8 ;  Phillips  v.  Hudson,  id.  242. 

§  2.  To  quiet  claims  established  at  law.  A  very  important  class 
of  cases  to  which  bills  of  peace  are  applicable  is,  where  the 
plaintiff  has,  after  repeated  trials,  satisfactorily  established  his 
right  at  law,  but  is  still  in  danger  of  being  subjected  to  further 
litigation  and  having  his  right  obstructed.  Upon  filing  a  bill  of 
peace,  under  such  circumstances,  a  court  of  equity  will  grant  a 
perpetual  injunction  to  quiet  the  possession  of  the  plaintiff,  and 
to  suppress  all  future  litigation  of  his  right.  Trustees  of  Hunt- 
Vol.  L  — 82 


650  BILLS  OF  PEACE. 

ington  v.  Niooll,  3  Johns.  ^QQ,  589.  Thus,  where  the  title  to 
land  had  been  several  times  tried  in  an  ejectment  suit,  and  a 
verdict  each  time  given  in  favor  of  the  plaintiff,  a  perpetual  in- 
junction was  decreed  upon  the  ground  that  it  was  the  only  ade- 
quate means  of  suppressing  oppressive  litigation  and  irreparable 
mischief.  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261  ;  S.  C,  10 
Mod.  1 ;  1  Bro.  P.  C.  266  ;  Leigliton  v.  LelgUon,  1  P.  Wms.  671. 
There  is  no  positive  rule  as  to  the  number  of  verdicts  which 
must  precede  the  bill  of  peace.  If  the  right  of  the  plaintiff  is 
satisfactorily  established,  it  is  held  to  be  immaterial  whether  the 
number  of  trials  which  have  taken  place  are  two  only,  or  more. 
Trustees  of  Huntington  v.  Nicoll,  3  Johns.  566,  589  ;  Marsh  v. 
Eeed,  10  Ohio,  347 ;  see  Craft  v.  Lathrop,  2  Wall.  Jr.  103.  But 
the  institution  of  repeated  suits,  if  the  same,  are  abandoned 
before  trial,  can  furnish  no  foundation  for  the  maintenance  of  a 
bill  of  peace  to  restrain  vexatious  litigation.  Patterson  v. 
IfcCamant,  28  Mo.  210  ;  see  Marmaduke  v.  Hannibal,  etc.,  R. 
R.  Co.,  30  id.  545 ;  Knowles  v.  Inches,  12  Cal.  212  ;  Alexander  v. 
Pendleton,  8  Cranch,  462. 

In  Pennsylvania,  and  perhaps  in  some  of  the  other  States,  two 
verdicts  in  ejectment,  for  either  party,  are,  by  a  statutory  pro- 
vision, made  an  absolute  bar  to  any  future  suit.  But  a  provis- 
ion of  this  kind  does  not  interfere  with  the  right  of  a  court  of 
the  United  States  to  entertain  a  bill  of  peace  as  to  ejectment  in 
its  own  jurisdiction.     Craft  v.  Lathrop,  2  Wall.  Jr.  103. 

§  3.  To  establish  rights  of  all  parties.  Another  class  of  cases 
in  which  a  bill  of  peace  is  the  proper  remedial  process  is,  where 
one  general  legal  right  is  claimed  against  several  distinct  per- 
sons. And  the  remedy  is  applicable  where  one  person  claims  or 
defends  a  right  against  many,  or  where  many  claim  or  defend  a 
right  against  one.  Sheffield  Water  Works  v.  Teomans,  L.  R.,  2 
Ch.  App.  8  ;  Alexander  v.  Pendleton,  8  Cranch,  462,  468 ;  El- 
dridge  v.  Hill,  2  Johns.  Ch.  281.  Courts  of  equity,  upon  the 
sole  ground  of  preventing  multiplicity  of  suits,  in  such  cases, 
will  try  a  title  or  have  it  tried  upon  proper  issues,  because  there 
is  a  number  of  persons  interested  in  it,  and  a  great  many  actions 
at  law  would  be  necessary  to  conclude  the  title.  lb. ;  Patterson 
V.  McCamant,  28  Mo.  210.  Suits  concerning  fisheries,  parochial 
tithes,  etc.,  are  of  this  kind  and  fall  within  this  class.  See  Ten- 
ham  V.  Herbert,  2  Atk.  483  ;  Diike  of  Norfolk  v.  Meyers,  4 
Mad.  50,  117;  Phillips  v.  Hudson,  L.  R.,  2  Ch.  App.  242.  Thus, 
where  one  has  possession,  and  claims  a  right  of  fishery  for  some 


BILLS  OF  PEACE.  651 

distance  along  the  course  of  a  river,  and  the  riparian  proprietors 
set  up  several  adverse  rights,  the  former  is  entitled  to  a  bill  of 
peace  against  all  of  them  for  the  purpose  of  establishing  his  right, 
and  quieting  his  possession.  Mayor  of  YorTc  v.  Filkington, 
1  Atk.  282.  So,  a  bill  of  peace  will  lie  to  establish  a  right  of 
common  of  the  freehold  tenants  of  a  manor.  Cowper  v.  Clarlc, 
3  P.  Wms.  157;  or  to  settle  the  amount  of  a  general  fine  to  be 
paid  by  all  the  copy-hold  tenants  of  a  manor.  lb ;  Powell  v. 
Powis,  1  Younge  &  Jerv.  159  ;  or  to  establish  a  duty,  claimed 
by  a  municipal  corporation  against  many  persons,  even  where 
there  is  no  privity  between  them.  Tenham  v.  Herhert^  2  Atk. 
483.  See  Morgan  v.  Morgan^  3  Stew.  (Ala.)  383.  It  has  like- 
wise been  held,  that  a  ferryman,  having  an  exclusive  right  of 
ferriage,  may  maintain  a  bill  of  peace  against  those  infringing 
his  privilege.  McEoherts  v.  Washburn,  10  Minn.  23 ;  Letton  v. 
Goodden,  L.  R.,  2  Eq.  123. 

§  4.  In  other  analogous  cases.  The  two  classes  of  cases  above 
mentioned  are  the  only  ones  in  which  bills  of  peace,  technically 
such,  will  lie ;  that  is,  where  the  complainant  has  satisfactorily 
established  his  right  at  law ;  or  where,  from  the  number  of  the 
parties  to  the  controversy,  an  issue  under  the  direction  of  the 
court  is  indispensable,  to  embrace  them  all  and  save  a  multi- 
plicity of  suits.  Eldridge  v.  Hill,  2  Johns.  Ch.  281 ;  Lopeer 
County  V.  Hart,  Harring.  Ch.  (Del.)  157.  There  are,  however, 
many  cases  analogous  to  these,  in  which  courts  of  equity  have 
interfered  to  quiet  the  enjoyment  of  a  right,  or  to  establish  it  by 
a  decree,  on  a  principle  similar  to  that  which  governs  bills  of 
peace.  See  Kennedy  v.  Kennedy,  43  Penn.  St.  413,  417 ;  Bean  v. 
Coleman,  44  N.  H.  539.  Such,  for  example,  are  cases  of  confu- 
sion of  boundaries ;  see  Kender  v.  Jones,  17  Ves.  110;  and 
under  the  prayer  for  general  relief  in  a  bill  of  peace,  a  court  of 
equity  may  require  a  disputed  boundary  to  be  surveyed  and 
marked  in  a  permanent  manner.  Primm  v.  Rdboteau,  56  Mo. 
407.  So,  in  cases  of  mines  and  collieries,  a  court  of  equity  will 
entertain  bills  in  the  nature  of  bills  of  peace,  where  there  is 
danger  that  the  mine  may  be  ruined  in  the  meantime  before  the 
right  can  be  established;  and  upon  such  a  bill  the  court  will 
grant  an  adequate  remedy  by  quieting  the  party  in  the  enjoy- 
ment of  his  right,  by  restoring  things  to  their  old  condition,  and 
by  establishing  the  right  by  a  decree.  See  2  Story's  Eq.  Juris., 
§  860  ;  Alexander  v.  Pendleton,  8  Cranch,  462,468.  Bills  enjoin- 
ing the  defendant  from -repeated  acts  of  trespass,  closely  resemble 


652  BILLS  OF  PEACE. 

bills  of  peace.  Livingston  v .  Limngston,  6  Johns.  Ch.  497 
Such,  for  instance,  are  bills  to  restrain  interference  with  or 
obstruction  of  a  water-course.  Lyon  v.  McLaughlin,  32  Vt.  423  ; 
Corning  v.  Troy  Iron  Factory, '6^^2iX\).  311;  S.C.  affirmed,  40  N. 
Y.  (1  Hand)  191 ;  Grill  v.  City  of  Rome,  47  How.  (N.  Y.)  398 ; 
Scheetzs'  Appeal,  35  Penn.  St.  88 ;  Sheldon  v.  Rockwell,  9  Wis. 
166.  Other  cases  will  be  noticed  in  treating  of  Bills  Quia  Timet^ 
Cloud  on  Title,  etc. 


ARTICLE  II. 

WHEN"  THE  KEMEDY   WILL    NOT  LIE. 

Section  1.  To  establish  private  right  against  the  rights  of  the 
public.  A  bill  of  peace  will  not  lie  to  establish  a  party  in  the 
enjoyment  of  a  right  claimed  in  contradiction  to  a  public  right; 
as  where  he  claims  an  exclusive  right  to  a  highway,  or  to  a  com- 
mon navigable  river.  For,  it  is  said,  if  a  bill  of  peace  could  be 
sustained  in  such  a  case,  the  injunction  would  be  against  all  the 
people  of  the  State  or  country.  See  Adams'  Eq,  200  ;  Dilly  v. 
Doig,  2  Yes.  Jr.  486.  But  the  true  principle  is  stated  to  be,  that 
courts  of  equity  will  not,  in  such  cases,  upon  principles  of  public 
policy,  intercept  the  assertion  of  public  rights.  2  Story's  Eq-. 
Juris.,  §  858. 

§  2.  No  privity  among  parties.  To  entitle  a  party  to  maintain 
a  bill  of  peace,  it  is  essential  that  there  be  a  right  claimed  affect- 
ing many  persons.  There  must  be  a  single  claim  of  right  in  all 
arising  out  of  some  privity  or  relationship  with  the  plaintiff. 
Thus  the  remedy  will  lie  against  the  lord  by  one  copy-holder,  on 
behalf  of  himself  and  the  other  copy-holders,  being  numerous, 
to  have  their  rights  of  common  ascertained ;  but  one  copy-holder, 
not  suing  on  behalf  of  all,  cannot  maintain  the  bill.  Phillips  v. 
Hudson,  L.  R.,  2  Ch.  App.  243  ;  see  Cowper  v.  Clerk,  3  P.  Wms. 
157  ;  Weller  v.  Smeaton,  1  Bro.  Ch.  572 ;  Alexander  v.  Pendle- 
ton, 8  Cranch,  462,468.  Nor  will  it  lie  where  the  rights  and  the 
responsibilities  of  the  defendants  neither  arise  from,  nor  depend 
upon,  nor  are  in  any  way  connected  with  each  other.  Randolph 
V.  Kinney,  3  Rand.  (Ya.)  394  ;  but  see  Mayor  of  York  v.  Pil- 
kington,  1  Atk.  284  ;  Tenham  v.  Herbert,  2  id.  483.  In  short, 
when  one  party  only  claims,  and  another  denies  a  right,  the 
court  will  not  entertain  the  bill.  Weller  v.  Smeaton,  1  Bro.  Ch. 
572. 


BILLS  OF  PEACE.  653 

§  3.  No  legal  or  equitable  title  in  party.  Those  only  who  have 
a  clear,  legal,  and  equitable  title  to  land,  connected  with  posses- 
sion, have  a  right  to  claim  the  interference  of  a  court  of  equity, 
to  give  them  peace  or  dissipate  a  cloud  on  the  title.  OrtonY. 
Smithy  18  How.  263 ;  Thomas  v.  White,  2  Ohio  St.  540.  So  a 
bill  in  the  nature  of  a  bill  of  peace,  and  praying  for  a  discovery 
against  joint  and  several  trespassers  on  real  estate,  will  not  lie 
in  favor  of  a  plaintiff  out  of  possession,  claiming  title  to  the  land. 
Ritchie  V.  Borland,  6  Cal.  33  ;  See  Cloud  on  Title. 

§  4.  Remedy  at  law.  It  is  a  settled  principle  that  a  bill  of 
peace  will  not  lie,  where  the  party  has  a  plain,  speedy,  and 
adequate  remedy  at  law.  Ritchie  v.  Borland,  6  Cal.  33.  And 
it  is  held,  that  the  courts  of  the  United  States  will  not  take  juris- 
diction of  a  bill  of  peace  for  an  injunction  to  quiet  the  title  of  an 
estate,  where  the  title  is  already  in  litigation  in  a  court  of  concur- 
rent jurisdiction.    Orton  v.  Smith,  18  How.  263. 


654  BILLS  QUIA  TIMET. 


CHAPTER  XXVI. 

BILLS  QUIA  TIMET. 

TITLE  L 

OF  THE  NATUEE  OF  BILLS  QUIA  TIMET,  AND  IN  WHAT 
OASES  ALLOWED. 

ARTICLE  I. 

WHEN"   THE   EEMEDY   WILL   LIE. 

Section  1.  Definition  and  nature  of  bills  quia  timet.  Bills  in 
equity  quia  timet  are  so  called  in  analogy  to  certain  writs  of 
the  common  law,  six  in  number,  called  hreiria  anticipantia^ 
writs  of  prevention.  See  Co.  Litt.  100  a.  These  common-law 
writs  are  now  seldom  used  ;  but  a  bill  in  Qqmiy -quia  timet  is  a 
remedy  in  common  use  for  the  prevention  of  wrongs  and  antici- 
pated mischiefs.  The  party  seeks  the  aid  of  a  court  of  equity, 
because  he  fears  {quia  timet)  some  future  probable  injury  to  his 
rights  or  interests,  and  not  because  an  injury  has  already  occur- 
red, which  requires  any  compensation  or  other  relief.  2  Story's 
Eq.  Juris.,  §  826.  And  unless  there  is  danger  that  the  plaintiff  will 
be  subjected  to  loss  by  the  neglect,  inadvertence,  or  culpability 
of  another,  the  remedy  by  bill  quia  timet  will  not  lie.  Ran- 
dolph v.  Kinney,  3  Rand.  (Va.)  394;  Green  v,  Hankinson, 
Walker  (Mich.),  487;  Sanderson  v,  Jones,  6  Fla.  430;  see  Tip- 
ping V.  Eckersley,  3  K.  &  J.  264. 

§  2.  To  preserve  property  for  the  party  entitled  thereto.  Bills 
quia  timet,  in  their  character  as  a  preventive  remedy,  are  usually 
filed  to  secure  the  preservation  of  property,  to  its  appropriate 
uses  and  ends,  for  the  party  entitled  thereto  ;  and  the  jurisdiction 
of  a  court  of  equity  to  allow  the  remedy  may  be  exercised 
wherever  there  is  danger  of  the  property  being  converted  to  other 
purposes,  or  diminished,  or  lost  through  culpable  negligence. 
See  Oihson  v.  Jayne,  37  Miss.  164  ;  Collins  v.  Barksdale,  23  Ga. 
602  ;  CMmplain  v.  Champlain,  4  Edw.  Ch.  (N.  T.)  228  ;  Pattis- 
son  v.  Gilford,  L.  R.,  18  Eq.  259.  As  it  regards  equitable  prop- 
erty, this  jurisdiction  attaches  equally  in  cases  where  there  is  a 


BILLS  QUIA  TIMET.  65o 

present  right  of  enjoyment,  and  in  cases  where  the  right  of  enjoy- 
ment is  future  or  contingent.  2  Story's  Eq.  Juris.,  §  827.  In  order 
to  render  the  remedy  effectual,  the  court  will  take  the  fund  into 
its  own  hands,  or  through  the  agency  of  its  own  officers  or  other- 
wise, secure  its  proper  management  and  appropriation.  Thus, 
it  is  said  to  be  the  settled  principle  of  the  court  that  an  executor 
or  other  trustee,  who  mismanages  6r  puts  the  assets  in  jeopardy 
by  his  insolvency,  either  existing  or  impending,  should  be  pre- 
vented from  further  interfering  with  the  estate,  and  that  the  funds 
should  be  withdrawn  from  his  hands.  Elmendorff  v.  Lansing^ 
4  Johns.  Ch.  565.  So,  in  case  of  collusion  between  the  debtors 
of  the  estate  and  the  executors  or  administrators,  the  court  will 
order  the  former  to  pay  the  amounts  of  their  debts  into  court. 
See  Utter  son  v.  Mair^  4  Bro.  Ch.  277 ;  Taylor  v.  Allen,  2  Atk. 
213  ;  Pliipps  V.  Annesley,  id.  58.  In  some  of  the  States  execu- 
tors are  required  to  give  bonds  like  administrators,  for  th^  faith- 
ful administration  of  the  estates  of  the  testators  ;  and  where  this 
is  the  case,  any  resort  to  a  court  of  equity  for  the  remedy  under 
consideration  is  rendered  unnecessary.  Thus,  under  the  Revised 
Statutes  of  New  York,  if  the  circumstances  of  the  executor  are 
such  as  not  to  afford  adequate  security  for  the  faithful  discharge 
of  his  trust,  and  the  objection  is  made  by  a  person  interested  in 
the  estate,  the  surrogate  is  bound  to  require  security  from  the 
executor.  2  R.  S.  72,  §  18.  And  see  SJilelds  v.  Shields,  60  Barb. 
56 ;  Wood  v.  Wood,  4  Paige's  Ch.  299  ;  Mandeville  v.  Mandemlle, 
8  id.  475. 

§  3.  Application  of  remedy  to  future  interests  in  personalty. 
Where  the  right  to  the  enjoyment  of  legal  property  is  a  present 
right,  legal  remedies  will  be  generally  found  sufficient  for  its 
protection  and  vindication.  But  it  is  otlierwise  where  the  right 
of  enjoyment  is  future  or  contingent.  Thus,  if  personal  property 
be  given  by  wOl  to  A  for  life,  and  after  his  death  to  B,  there  is, 
at  law,  no  remedy  to  secure  the  legacy  to  B,  whether  it  be  of 
specific  chattels,  or  of  a  pecuniary  nature.  Clark  v.  ClarA;  8 
Paige,  152  ;  2  Story's  Eq.  Juris.,  §  843.  In  all  cases  of  this  kind, 
however,  courts  of  equity  will  now  interfere  and  grant  relief 
upon  a  bill  quia  timet,  where  there  is  any  reason  to  fear  the 
destruction  or  removal  of  the  property,  or  injury  is  apprehended 
to  it,  in  the  hands  of  the  party  who  is  entitled  to  the  present 
possession.  Collins  v.  Barlcsdale,  23  Ga.  602 ;  Emmons  v. 
Cairns,  2  Sandf.  Ch.  369 ;  Gibson  v.  Jayne,  37  Miss.  164 ;  Co- 
venhoven  v.  Shuler,  2  Paige,  123;   James  v.  Scott,  9  Ala.  579, 


656  BILLS  QUIA  TIMET. 

Where  a  binding  agreement  was  made  by  an  uncle,  that  his 
nephew  should  have  his  property  after  his  death,  the  nephew 
was  held  entitled  to  relief  in  the  life-time  of  the  uncle,  against  a 
conveyance  in  fraud  of  the  agreement.  Van  Duyne  v.  Vree- 
land,  1  Beasl.  (N.  J.)  142.  And  where,  under  marriage  articles, 
tlie  plaintiff,  in  case  she  survived  her  husband,  had  a  contingent 
interest  in  certain  South  Sea  annuities,  and  a  certain  promissory 
note,  which  were  specifically  appointed  for  the  payment  of  the 
same,  to  be  allowed  her,  and  the  defendant  had  threatened  to 
aliene  the  property  and  securities,  on  a  bill  quia  timet,  a  decree 
was  made,  that  the  defendant  should  give  security  to  have  the 
same  forthcoming,  flight  v.  Coo^,  2  Ves.  Sr.  619 ;  2  Story's 
Eq.  Juris.,  §  846.  It  is  likewise  held,  that  if  children  who  are 
remaindermen  under  a  marriage  settlement  are  in  fear  that  the 
property  is  being  wasted  and  squandered,  their  proper  remedy 
is  by  a  bill  quia  timet.  Sanderson  v.  Jones,  6  Fla.  430.  So, 
where  a  life-interest  in  personal  property  is  seized  in  execution 
as  the  property  of  the  tenant  for  life,  and  sold  as  such,  and  the 
purchaser  claims  the  entire  interest,  a  court  of  equity  will  inter- 
pose for  the  protection  of  the  rights  of  the  remaindermen.  Mc- 
Dougal  v.  Armstrong,  6  Humph.  (Tenn.)  428  ;  Bowling  v.  Bow- 
ling, 6  B.  Monr.  (Ky.)  31.  And  it  seems  that  a  husband  who  has 
a  contingent  interest  in  property  placed  in  trust  for  the  mainten- 
ance of  his  wife,  on  his  separation  from  her,  is  entitled  to  equi- 
table aid  for  the  protection  of  the  fund,  if  there  is  reason  to  fear 
that  it  will  be  squandered,  or  diverted  from  the  purpose  for 
which  it  was  provided.  Cranston  v.  Plumh,  54  Barb.  59.  But 
equity  will  not  grant  an  injunction  at  the  suit  of  the  wife,  to 
prevent  a  husband  from  disposing  of  his  property,  on  the  ground 
of  apprehended  desertion  by  the  husband,  and  his  removal 
beyond  the  jurisdiction  of  the  State.  Anshutz  v.  Anshutz,  1 
Green's  Eq.  (N.  J.)  162. 

§  4.  Protection  of  sureties.  The  remedy  by  a  bill  quia  timet 
is  also  applicable  in  cases  of  sureties  of  debtors  and  others  seek- 
ing protection.  Thus,  if  a  surety,  at  the  time  a  debt  is  due, 
apprehends  loss  or  injury  from  the  delay  of  the  creditor  to 
enforce  the  debt  against  the  principal  debtor,  he  is  entitled  to 
this  remedy  for  the  purpose  of  compelling  the  debtor  to  dis- 
charge the  debt  or  other  obligation  for  which  the  surety  is  held. 
Cox  V.  Tyson,  1  Turn.  &  Russ.  395  ;  Nishet  v.  Smith,  2  Bro.  Ch. 
679.  And  it  is  now  considered  a  settled  rule,  that  the  surety  may 
come  into  equity,  if  he  apprehends  danger  from  the  creditor's 


BILLS  QUIA  TIMET.  657 

delay,  and  compel  tlie  creditor  to  sue  the  principal  debtor,  tliough, 
probably,  he  must  indemnify  the  creditor  against  the  consequen- 
ces of  risk,  delay  and  expense.  Hayes  v.  Ward^  4  Johns.  Ch. 
123,  132  ;  Steplienson  v.  Taverners,  9  Gratt.  (Va.)  398  ;  King  v. 
Baldwin,  2  Johns.  Ch.  561 ;  Wright  v.  Simpson,  6  Ves.  734.  But 
see  Rees  v.  Berrington,  2  Ves.  Jr.  540;  Nesbit  v.  Smith,  2  Bro. 
Ch.  579. 

§  5.  Miscellaneous  cases.  There  are  various  other  cases  in 
which  a  remedy  in  the  nature  of  bills  quia  timet  is  applied  by 
a  court  of  equity  to  prevent  the  waste  or  destruction  of  property 
pendente  lite,  or  to  prevent  irreparable  mischief.  See  Building 
Association  v.  Ashmead,  7  Phila.  (Penn.)  272.  Thus  a  court  of 
equity  has  unquestioned  jurisdiction,  quia  timet,  of  a  petition  to 
enjoin  one  from  cutting  timber,  or  otherwise  intruding  on  a  strip 
of  land  claimed  by  both  parties,  and  seeking  reparation  for  past 
intrusion  and  conversion  of  timber.  Peak  v.  Hay  den,  3  Busli 
(Ky.),  125.  So,  a  bill  quia  timet  will  lie  where  the  defendant  is 
interfering  with  the  complainant's  tenants  by  demanding  rent  of 
them,  and  is  throwing  suspicion  on  the  complainant's  title,  and 
the  latter  cannot  maintain  an  action  at  law  because  he  has  not 
been  dispossessed.  Polk  v.  Rose,  25  Md.  153.  Other  illustra- 
tions of  the  application  of  the  remedy  will  be  given  in  treating 
of  Cloud  on  Title,  Matters  of  Injunction,  etc. 

In  a  recent  case  it  was  held,  that  an  instrument  will  not  be 
canceled  on  a  bill  quia  timet,  without  a  clear  showing  of  the 
complainant' s  title  to  such  relief,  free  from  all  reasonable  doubt. 
Shotwell  V.  Shotwell,  24  N.  J.  Eq.  378. 


ARTICLE  11. 

MODE  OF  OBTAINING   RELIEF.  ^-  *•" 

Section  1.  In  general.  The  mode  in  which  courts  of  equity 
afford  relief  upon  a  bill  quia  timet,  incasee  where  the  plaintiia:* 
has  established  his  title  to  the  future  enjoyment,  or  it  is  admitted, 
is  dependent  upon  circumstances.  Sometimes  the  relief  is  given 
by  the  appointment  of  a  receiver  to  receive  rents  or  other  income, 
sometimes  by  an  order  to  pay  a  pecuniary  fund  into  court, 
sometimes  by  ordering  the  defendant  to  give  security,  and  some- 
times by  the  mere  issuing  of  a  writ  of  injunction  or  other 
remedial  process.  See  Jeremy's  Eq.  Juris.  248;  Story's  Eq. 
Juris.,  §  826. 
Vol.  I.  —  83 


658  BILLS  QUIA  TIMET. 

§  2.  By  appoiutmeiit  of  receiver.  The  appointment  of  a  receiver 
is,  in  most  cases,  one  of  the  objects  of  a  bill  quia  timet.  The 
appointment  is  made  upon  principles  of  justice  for  the  berielit 
of  all  parties  concerned,  and  is  a  matter  wholly  resting  in  the 
sound  discretion  of  the  court.  Yerplank  v.  Caines^  1  Johns.  Ch. 
67 ;  Skip  v.  Harwood,  3  Atk.  564.  The  object  of  the  appoint- 
ment is,  to  secure  the  property  for  its  appropriate  uses  and  ends, 
and  to  prevent  it  from  being  dissipated  where  there  is  danger  of 
its  being  converted  to  other  purposes,  or  deteriorated,  or  lost. 
As  regards  an  equitable  property,  a  receiver  may  be  appointed 
to  secure  it  from  danger,  whether  the  right  of  enjoyment  be  pres- 
ent or  future,  vested  or  contingent.  Thus,  where  an  executor 
or  other  trustee  is  charged  with  an  abuse  of  his  trust,  the  court 
will  appoint  a  receiver,  or  in  case  the  fund  be  pecuniary,  will 
^irect  it  to  be  paid  into  court,  or  require  security  for  its  preser- 
vation and  appropriation.  See  Utter  son  v.  Mair,  4  Bro.  Ch.  277  ; 
Mandeville  v.  Mandemlle,  8  Paige,  475 ;  Haggarty  v.  Pitman, 
1  id.  298  ;  CJiappell  v.  Akin,  39  Ga.  177  ;  In  re  Johnson,  L.  E., 
1  Ch.  App.  325. 

In  accordance  with  the  maxim  that  equality  is  equity,  the 
appointment  of  a  receiver  is  made  for  the  benefit  and  on  behalf 
of  all  the  parties  in  interest,  and  not  for  the  benefit  of  the  plain- 
tiff or  one  defendant  only.  Dams  v.  Duke  of  Marlborough,  1 
Swanst.  83  ;  S.  C,  2  id.  125.  Where  there  are  creditors,  annui- 
tants, and  others,  some  of  whom  are  creditors  at  law, 
claiming  under  judgments,  and  others  are  creditors  claiming 
upon  equitable  debts,  if  the  property  be  of  such  a  nature, 
that  if  legal,  it  may  be  taken  in  execution,  it  may,  if 
equitable,  be  put  into  the  possession  of  a  receiver,  to  hold 
the  same,  and  apply  the  profits  under  the  direction  of  the 
court,  for  the  benefit  of  all  the  parties,  according  to  their 
respective  rights  and  priorities.  Id.  125,  135,  139,  145,  146.  The 
same  rule  is  applicable  to  cases  where  the  property  is  legal,  and 
judgment  creditors  have  taken  possession  of  it  in  any  manner  ; 
for  it  is  competent  for  the  court  to  appoint  a  receiver  of  any 
kind  of  creditors,  not  disturbing  the  just  prior  rights,  if  any,  of 
the  judgment  creditors.  lb. ;  S.  C,  1  Swanst.  83 ;  White  v. 
Bishop  of  Peterborough,  3  id.  117,  118 ;  2  Story's  Eq.  Juris., 
§  829.  Hence  the  appointment  of  a  receiver,  in  cases  of  this 
sort,  is  often  called  an  equitable  execution.  lb.  There  are 
statutory  provisions  existing  very  generally  in  the  United  States, 
by  means  of  which,  aid  may  be  had  in  a  court  of  equity  in  favor 


BILLS  QUIA  TIMET.  659 

of  a  judgment  creditor,  and  sometimes  even  before  judgment,  to 
secure  or  apply  assets  which  cannot  be  reached  by  ordinary 
legal  process,  ^ee  Bastings  v.  Palmer,  Clarke's  Ch.  (N.Y.)  52  ; 
Hadden  v.  Spader,  20  Johns.  554.  This  remedy  is  known  as 
a  creditor's  bill,  and  the  jurisdiction  of  a  court  of  equity  to 
grant  the  relief  afforded  thereby  would  seem  to  exist  independ- 
ent of  statutes.  See  Barry  v.  Abbott,  JLOO  Mass.  396  ;  Pendleton 
V.  Perkins,  49  Mo.  565 ;  Cohen  v.  Myers,  42  Ga.  46  ;  Skinner  v. 
Maxwell,  QQ  N.  C.  45 ;  Dumphy  v.  Kliensmith,  11  Wall.  610. 
And  see  title  Creditor's  Bill. 

The  receiver,  when  appointed,  is  virtually  an  officer  and  repre- 
sentative of  the  court,  and  subject  to  its  orders.  Angel  v.  Smith, 
9  Yes.  335;  Rutchinson  v.  Massareene,  2  B.  &  B.  55 ;  Skip  v. 
Harwood,  3  Atk.  5Q4:.  The  appointment  of  a  receiver  of  the 
rents  and  profits  of  real  estate  is  generally  deemed  to  entitle  him 
to  possession  of  the  premises.  If  there  are  tenants  in  possession 
of  the  premises,  they  are  compellable  to  attorn  to  the  receiver, 
although  not  parties  to  the  suit.  See  Sea  Ins.  Co.  v.  Stehhins,  8 
Paige,  565  ;  Bowery  Savings  Bank  v.  Richards,  3  Hun  (N.  Y.), 
366  ;  S.  C,  6  N.  Y.  S.  C.  (T.  &  C.)  59  ;  and  the  court  thus  becomes, 
pro  hac  vice,  the  landlord.  Angle  v.  Smith,  9  Yes.  335  ;  Sharp 
V.  Carter,  3  P.  Wms.  379  ;  see  Albany  City  Bank  v.  Schermer- 
horn,  9  Paige,  372.  The  possession  of  the  receiver  does  not, 
however,  affect  the  rights  of  third  persons  when  they  are  ulti- 
mately established,  but  he  is  considered  as  holding  for  the  true 
owner ;  nor  can  he  proceed  in  any  ejectment  against  the  tenants 
of  any  estate,  without  the  authority  of  the  court.  Wynne  v. 
Lord  Newborough,  3  Bro.  Ch.  88 ;  S.  C,  1  Yes.  Jr.  164.  And 
generally,  he  is  not  at  liberty  to  bring  or  to  defend  actions,  let 
the  estate,  or  lay  out  money,  without  the  special  leave  of  the 
court.  Merritt  v.  Lyon,  16  Wend.  405, 410  ;  Matter  of  Bangs, 
15  Barb. ,264.  See  Armstrong  y.  Armstrong,  L.  R.,12  Eq.  614. 
Before  entering  upon  the  performance  of  the  duties  of  his  ap- 
pointment, the  receiver  will  be  required  to  give  bond  with  surety 
under  the  direction  of  the  court.  2  Madd.  Ch.  Pr.  240.  He  is 
bound  to  act  in  good  faith  and  with  a  proper  degree  of  diligence  ; 
and  if  property  is  lost  through  his  fault  or  neglect,  he  may  be 
held  liable  for  it.  See  Knight  v.  Plymouth,  3  Atk.  480 ;  Wren 
V.  Kirton,  11  Yes.  Jr.  377;  Aurentz  v.  Porter,  56  Penn.  St.  115. 

In  addition  to  the  cases  mentioned  generally,  in  which  a 
receiver  will  be  appointed  under  a  bill  quia  timet,  may  be  added 
those  cases  where  an  estate  is  held  by  a  party,  under  a  title  ob- 


660  BILLS  QUIA  TIMET. 

tained  by  fraud,  actual  or  constructive.  Huguenin  v.  Baseley^ 
13  Yes.  105.  So,  where  there  are  several  incumbrances  on  an 
estate,  and  the  first  incumbrancer  is  not  in  possession,  and  does 
not  desire  it,  or  if  he  has  been  paid  oflf,  or  refuses  to  receive 
what  is  due  him,  a  receiver  may  be  appointed  upon  the  applica- 
tion of  a  subsequent  incumbrancer.  Codrington  v.  Parlcer^  16 
Yes.  469 ;  Norway  v.  Bowe,  19  id.  153 ;  and  see  Quarrell  v. 
BecTcford,  13  id.  377 ;  Sollory  v.  Leaver,  L.  R.,  9  Eq.  22.  And 
where  tenants  of  particular  estates  for  life,  or  in  tail,  neglect  to 
keep  down  the  interest  due  upon  incumbrances  upon  the  estates, 
a  receiver  will  be  appointed  by  the  court  to  receive  the  rents  and 
profits,  in  order  to  keep  down  the  interest.  Bertie  v.  Lord 
Abingdon,  3  Meriv.  560,  568 ;  Oiffard  v.  Hart,  1  Sch.  &  Lefr. 
407,  note  ;  see  PTielan  v.  Boylan,  25  Wis.  679. 

A  court  of  equity  will  not  interfere,  upon  slight  grounds,  with 
the  management  and  administration  of  assets  by  executors  and 
administrators.  See  SchleoM'' s  Appeal,  60  Penn.  St.  172 ;  Hitchen  ' 
V.  Birks,  L.  R.,  10  Eq.  471.  Where,  therefore,  it  is  sought  to  have 
a  receiver  appointed  against  an  executor  or  administrator,  it  is 
necessary  to  show  that  there  is  some  positive  loss,  or  danger  of 
loss,  of  the  funds ;  as,  for  instance,  from  the  insolvency,  bank- 
ruptcy, fraud,  or  negligence  of  the  executor  or  administrator. 
In  re  Johnson,  L.  R.,  1  Ch.  App.  325 ;  Mandeville  v.  Mandeville, 
8  Paige,  475  ;  Chappell  v.  ATcin,  39  Ga.  177.  The  poverty  of  the 
party  alone  will  not  constitute  a  sufficient  ground  for  the  ap- 
pointment of  a  receiver.  Hoioard  v.  Papera,  1  Mad.  142  ;  White 
V.  Bishop  of  Peterborough,  2  Swanst.  109  ;  Wood  v.  Wood,  4 
Paige,  299,  303. 

§  3.  By  ordering  money  to  be  paid  into  court.  Another  rem- 
edy which  is  sometimes  allowed  under  a  bill  quia  timet,  is  an 
order  requiring  the  payment  of  money  into  court,  and  this  upon 
the  principle,  that  he  who  is  entitled  to  the  money  is  entitled  to 
have  it  secured.  The  court  will  not  apply  the  remedy,  unless 
the  plaintiff"  has  an  interest  in  the  fund.  See  Cruikshanks  v. 
Robarts,  6  Mad.  104;  Gedge  v.  Trail,  1  Russ.  &  Mylne,  277. 
But  there  are  cases  in  which  it  will  be  applied,  without  any 
ground  being  laid  to  show  that  there  has  been  any  abuse  or  any 
danger  to  the  fund.  Freeman  v.  Fairlie,  3  Meriv.  29 ;  Roth- 
well  V.  Rothwell,  2  Sim.  &  Stu.  217;  ClarJcsonv.  De  Peyster, 
Hopk.  Ch.  (N.  Y.)  274;  Strange  v.  Harris,  3  Bro.  Ch.  365. 
Thus,  in  cases  of  bills  brought  by  creditors,  or  legatees,  or  dis- 
tributees, against  executors  or  administrators  for  a  settlement  of 


BILLS  QUIA  TIMET.  661 

the  estate,  if,  by  his  answer,  the  executor  or  administrator  ad- 
mits assets  in  his  hands,  and  the  court  takes  upon  itself  the 
settlement  of  the  estate,  it  will  direct  the  money  to  be  paid  into 
court.  lb. ;  Tare  v.  Harrison,  2  Cox,  377 ;  2  Story' s  Eq.  Juris. , 
§  839  ;  see  Mandemlle  v.  Mandeville,  8  Paige,  475.  Papers  and 
writings  in  the  hands  of  executors  and  administrators  may  like- 
wise be  directed  by  the  court,  to  be  deposited  with  a  master,  for 
the  benefit  of  those  interested,  unless  there  are  other  purposes 
which  require  that  they  should  be  retained  in  the  hands  of  the 
executors  or  administrators.  Freeman  v.  Fairlie,  3  Meriv.  29  ; 
Clark  V.  Clark,  8  Paige,  152. 

§  4.  By  ordering  defendant  to  give  security.  This  remedy, 
under  a  bill  quia  timet,  is  applied  in  those  cases  where  property 
is  so  situated  that  the  party  ultimately  entitled  to  it  apprehends 
fear  of  its  loss,  unless  security  is  given  for  its  preservation.  A 
familiar  illustration  is  the  case  of  personal  property  given  by  a 
will  to  one  for  life,  and  afterward  to  another  ;  and  formerly,  the 
legatee  in  remainder  was  entitled,  in  all  cases,  to  come  into  a 
court  of  equity,  and  to  have  a  decree  for  security  from  the  ten- 
ant for  life,  for  the  due  delivery  over  of  the. legacy  to  the 
remainderman.  1  Story' s  Eq.  Juris.,  §  604.  But  the  modern  prac- 
tice in  such  cases  is,  only  to  require  an  inventory  of  the  articles, 
specifying  that  they  belong  to  the  first  taker,  for  the  particular 
period  only,  and  afterward  to  the  person  in  remainder ;  and 
security  is  not  required,  unless  there  is  danger  that  the  articles 
may  be  wasted,  or  otherwise  lost  to  the  remainderman.  Coven- 
hoven  v.  Shuler,  2  Paige,  122,  132 ;  Henderson  v.  Vaulx,  10 
Yerg.  (Tenn.)  30  ;  see  Bowling  v.  Bowling,  6  B.  Monr.  (Ky.)  31 ; 
McDougal  v.  Armstrong,  6  Humph.  (Tenn.)  428  ;  Kinnard  v. 
Kinnard,  5  Watts  (Pa.),  109 ;  Lippincott  v.  Warder,  14  Serg. 
&  R.  (Penn.)  118 ;  Smith  v.  Ostrand,  3  Hun  {N.  t.),  450;  S.  C, 
5  N.  Y.  S.  C.  (T.  &  C.)  664,  667.     And  see  ante,  656,  art.  1,  §  4. 

§  5.  By  writ  of  injunction.  Upon  a  proper  case  being  made 
out  in  a  bill  quia  timet,  supported  by  proof,  the  court  will 
enforce  the  performance  of  its  decree  upon  the  party,  by  the 
writ  of  injunction.  But  an  examination  of  these  cases  will  be 
more  appropriate,  in  treating  of  matters  of  injunction.  See 
ante,  657,  art.  1,  §  5. 


662  BILL  TO  KEMOVE  CLOUD  ON  TITLE. 


CHAPTER  XXVII. 

BILL  TO  EEMOVE  CLOUD  ON  TITLE. 

TITLE  I. 

NATUEE  OF  THE  KEMEDY,  AND  WHEN  OBTAINABLE. 

AKTICLE  I. 

WHEN"  THE  REMEDY  LIES. 

Section  1.  What  constitutes  cloud  on  title.  A  cloud  upon 
title  is  a  title,  or  incumbrance,  apparently  valid,  but  in  fact  in- 
valid. Bissell  V.  Kellogg,  60  Barb.  617,  629.  And  a  remedy  lies 
for  the  removal  of  clouds  upon  title,  because  they  embarrass  the 
owner  of  the  property  clouded,  and  tend  to  impede  his  free  sale 
and  disposition  of  it.  lb.  And  see  Lyon  v.  Hunt,  11  Ala.  295; 
Anderson  v.  Hooks,  9  id.  704 ;  Huntington  v.  Allen,  44  Miss. 
654 ;  Sanxay  v.  Hunger,  42  Ind.  44 ;  Hartford  v.  Chipman,  21 
Conn.  488.  The  idea  of  real  danger  is  not  necessarily  involved 
in  that  of  a  cloud  upon  title.  If  the  title  is  obscured,  so  as  to 
render  the  right  of  the  real  owner  less  clear,  there  is  a  cloud. 
Ward  V.  Dewey,  16  N.  Y.  (2  Smith)  519,  531.  Nor  is  it  necessary 
to  constitute  a  cloud,  that  there  should  be  a  title  upon  record 
apparently  valid.  It  is  sufficient  if  there  be  a  deed,  valid  upon 
its  face,  accompanied  with  a  claim  of  title  based  upon  facts 
showing  an  apparent  title  under  such  circumstances  as  lead  to 
the  belief  that  the  deed  is  likely  to  work  mischief  to  the  real 
owner  of  the  property.  Scott  v.  0?iderdonk,  14  N.  Y.  (4  Kern.) 
9  ;  Allen  v.  City  of  Buffalo,  39  N.  Y.  (12  Tiflf.)  390 ;  Fonda  v. 
Sage,  48  N.  Y.  (3  Sick.)  173  ;  Marsh  v.  City  of  BrooTclyn,  59  N. 
Y.  (14  Sick.)  280  ;  and  see  Moore  y.  Cord,  14  Wis.  213  ;  OamUe 
V.  Loop,  14  id.  465;  Dunklin  County  v.  Clark,  51  Mo.  60.  So, 
the  rule  is  stated  to  be,  that  if  a  title,  against  which  relief  is 
prayed  as  a  cloud,  is  of  such  a  character  that,  if  asserted  by 
action,  and  put  in  evidence,  it  would  drive  the  other  party  to  the 
production  of  his  own  title  in  defense,  it  constitutes  a  cloud, 
which  the  latter  has  a  right  to  have  removed.  Lick  v.  Ray,  43 
Cal.  83. 


BILL  TO  REMOVE  CLOUD  ON  TITLE.  663 

§  2.  Jurisdiction  to  remove,  in  what  court.  The  removal  of 
clouds  upon  title,  and  obstacles  in  the  way  of  the  full  enjoy- 
ment of  property,  is  an  acknowledged  head  of  equity  jurisdic- 
tion. RadcUffe  v.  Rowley,  4.  Edw.  Ch.  (N.  Y.)  646  ;  Standlsh  v. 
Dow,  21  Iowa,  363 ;  Walker  v.  Peay,  22  Ark.  103 ;  Low  v.  Staples^ 
2  Nev.  209.  And  the  relief  afforded  by  a  court  of  equity  seems 
to  be  on  the  principle  of  a  bill  quia  timet,  lest  the  deed  or  other 
instrument  might  be  injuriously  used  against  the  party,  or  might 
throw  a  cloud  or  suspicion  over  his  title.  See  Hamilton  v.  Cum. 
mings,  1  Johns.  Ch.  517  ;  Pettit  v.  Shepherd,  5  Paige,  501 ;  Myers 
v.  Hewitt,  16  Ohio,  449 ;  Downing  v.  Wherrin,  19  N.  H.  9,  91 ; 
Glazier  v.  Bailey,  47  Miss.  395.  Or,  the  jurisdiction  is  exercised 
upon  the  ground  that  it  is  for  the  interest  of  both  parties,  that 
the  precise  state  of  the  title  to  the  estate  be  known  if  all  are  act 
ting  hona  fide  ;  and  if  not,  that  a  merely  colorable  and  pretend- 
ed claim  is  a  fraud  upon  the  real  owner,  and  as  such  should  be 
extinguished.  1  Story's  Eq.  Juris.,  §  711,  a. ;  and  see  Hodges  y. 
Griggs,  21  Yt.  280  ;  Eldridge  v.  Smith,  34  id.  484.  So  it  is 
settled  that  a  bill  in  equity  may  be  maintained  to  prevent  a  cloud 
being  cast  upon  real  estate,  as  well  as  to  remove  a  cloud  already 
created.  Pettit  v.  Shepherd,  5  Paige,  493 ;  Mann  v.  City  of 
Utica,  44  How.  (N.  Y.)  334  ;]Sr.T.&  H  R.  R.  Oo.  v.  Morrisania, 
7  Hun  (N.  Y.),  652.  And  a  party  may  come  into  equity  for  the 
cancellation  of  a  deed,  which  is  a  cloud  upon  his  title,  though 
he  may  have  a  remedy  at  law.  Hall  v.  Fisher,  9  Barb.  17,  24  ; 
Almony  v.  Hicks,  3  Head  (Tenn.),  39.  Great  caution  will,  how- 
ever, be  exercised  by  the  courts  to  prevent  abuse,  and  in  many 
cases  the  parties  must  be  left  to  their  remedies  at  law.  Glazier 
V.  Bailey,  47  Miss.  395. 

§  3.  Who  may  maintain  the  bilL  A  court  of  equity  will  enter- 
tain jurisdiction  to  remove  cloud  upon  title  only  where  the  com- 
plainant is  in  possession,  or  from  other  cause,  is  without  adequate 
legal  remedy.  Bunce  v.  Gallagher,  5  Blatch.  (C.  C.)  48 ;  Sul- 
livan V.  Finnegan^  101  Mass.  447 ;  Woods  v.  Monroe,  17  Mich. 
238 ;  Burton  v.  Gleason,  56  111.  25  ;  ClarTc  v.  Covenant,  etc.,  Ins. 
Co.,  52  Mo.  272.  Persons  out  of  possession,  who  cannot  be  com- 
pelled to  defend  their  rights  at  law,  are  entitled  to  the  equitable 
remedy.  Barrow  v.  Robhins,  22  Mo.  42  ;  see  0'  Brien  v,  Creig, 
10  Kan.  202.  A  mortgagee  may  maintain  the  bill.  Polk  v.  Rey- 
nolds, 31  Md.  106 ;  Wofford  v.  Board  of  Police,  etc.,  44  Miss. 
679  ;  and  so  may  several  landholders  holding  from  a  common 
source,  on  the  ground  of  preventing  a  multiplicity  of  suits.    Dart 


664  BILL  TO  KEMOVE  CLOUD  ON  TITLE. 

V.  Orme^  41  .Ga.  376.    And  where  the  vendor  in  possession  claims 
that  a  deed  is  only  a  mortgage,  the  vendee  may  maintain  the  bill. 
Rich  V.  Doane,  35  Vt.  124  ;  Shays  v.  Norton,  48  111.  100.     So,  it 
seems  that  a  judgment  obtained  after  the  death  of  the  defendant 
is  a  cloud,  and  a  bill  for  its  removal  may  be  maintained  by  the 
heir  at  law  of  the  defendant.    Blodget  v.  Blodget,  42  How.  (N. 
Y.)  19  ;  see  Foot  v.  Dillaye,  65  Barb.  521,  524.     It  has  been  held, 
that  the  grantor  of  land  in  parcels  to  numerous  parties,  with 
warranty,  has  such  an  interest  as  entitles  him  to  avoid  by  suit  a 
deed  to  another  party  which  clouds  his  title.     Ely  v.  Wilcox,  26 
Wis.  91 ;  Chamblin  v.  Schlichter,  12  Minn.  276.    But  see  Bissell 
V.  Kellogg,  60  Barb.  617.     And  it  seems  that  one  whose  title  rests 
on  the  statute  of  limitations  may  come  into  equity  to  remove  the 
cloud  of  the  record  title.    Marston  v.  liowe,  39  Ala.  722;  Ar- 
rington  v.  Liscomb,  34  Cal.  365 ;  Moody  v.  Holcomb,  26  Tex. 
714.     As  may  likewise  a  judgment  creditor,  in  order  that  he  may 
be  the  better  enabled  to  enforce  his  judgment.     See  Stowell  v. 
Haslett,  5  Lans.  (N.  Y.)  380.     And  in  Texas,  it  is  held  that  a 
suit  may  be  brought  to  remove  a  cloud  from  the  title  to  the 
homestead   of  a  deceased    person,    by  his  widow  and   heirs, 
although  no  administration  has  been  taken  out  on  the  estate  of 
the  deceased,  and  the  homestead  has  never  been  set  apart  to  them. 
Sossaman  v.  Powell,  21  Tex.  664. 

§  4.  In  what  cases  maiutainable.  Among  the  cases  in  which 
bills  to  remove  clouds  upon  title  have  been  sustained  are  the 
following  :  Where  a  cloud  rests  upon  the  title  of  a  party  to  real 
estate,  by  reason  of  an  unsatisfied  mortgage,  or  a  deed  made 
without  authority.  Carter  v.  Taylor,  3  Head  (Tenn.),  30 ;  see 
Clouston  V.  Shearer,  99  Mass.  209  ;  or  where  the  cloud  is  created 
by  a  deed  alleged  to  be  forged  ;  the  only  question  being  whether 
such  deed  was  forged  or  not.  Bunce  v.  Gallagher,  5  Blatch. 
(C.  C.)  481 ;  see  Sullivan  v.  Finnegan,  101  Mass.  447  ;  or  where 
another  person  has  obtained  a  deed  for  a  party's  land,  which  is 
against  conscience  for  him  to  use  or  enforce.  '  Shell  v.  Martin,  19 
Ark.  139;  or  where  a  deed  has  been  executed  though  never  deliv- 
ered. Brewton  v.  Smith,  28  Ga.  442 ;  see  EcTcman  v.  Eckman,  55 
Penn.St.  269;  Pratt  v.  Pond,  5  Allen  (Mass.),  59;  or  when  there  has 
been  a  sale  and  a  deed  in  pursuance  of  a  void  levy,  and  the  party 
claims  title  under  them.  Stout  v.  Cook,  37  111.  283  ;  see  Ander- 
son V.  Talbot,  1  Heisk.  (Tenn.)  407.  So,  the  bill  is  held  to  lie  in 
case  of  an  actual  or  threatened  sale  of  the  land  to  another.  Guy 
V.  Hermance,  5  Cal.  73 ;  Burt  v.  Casslty,  12  Ala.  734 ;  Thomp- 


BILL  TO  REMOVE  CLOUD  ON  TITLE.  665 

son  V.  Lynch^  29  Cal.  189 ;  or  where  a  title,  otherwise  clear,  is 
clouded  by  a  claim  which  cannot  be  enforced  either  at  law  or  in 
equity.  Holland  v.  Mayor ^  etc.^  of  Baltimore^  11  Md.  186  ;  or 
where  there  is  a  void  decree  for  the  sale  of  real  estate.  Johnson 
V.  Johnson^  30  111.  215.  So,  an  agreement  for  the  sale  of  land, 
which  was  not  accepted  within  a  reasonable  time,  but  was  after- 
ward accepted  and  filed  in  the  recorder' s  office,  was  held  to  be 
a  cloud  on  the  title,  for  which  a  bill  to  remove  would  lie.  Lar- 
TTion  V.  Jordon^  5Q  111.  204.  And.  where,  after  the  passing  of  title, 
the  vendor  was  declared  a  lunatic,  it  was  tield  that  this  created 
such  a  cloud  upon  title  as  justified  the  vendee  in  coming  into 
equity  to  have  his  title  established.  Younger  v.  Skinner,  14  N. 
J.  Eq.  (1  McCart.)  389.  A  bond  for  a  deed  creates  a  lien  on  the 
land,  and  casts  a  cloud  upon  the  obligor's  title  w^hich  he  is 
entitled  to  have  removed ;  and  if  the  obligee  be  in  possession, 
the  obligor  is  not  confined  to  his  action  of  ejectment,  even  if  this 
would  ajfford  a  full  and  complete  remedy.  DaJil  v.  Pross,  6 
Minn.  89. 

The  exceptional  cases  in  which  a  court  of  equity  will  interfere 
against  a  tax  or  assessment  as  a  cloud  are  held  to  be :  First, 
where  the  proceeding  in  the  subordinate  tribunal  will  necessar- 
ily lead  to  a  multiplicity  of  suits  ;  Second,  where,  otherwise, 
there  will  be  committed  irreparable  injury;  and  Third,  where 
the  title  is  by  the  instrument  or  proceeding  prima  facie  valid, 
and  it  is  necessary  to  show  some  extrinsic  fact  to  establish  its  in- 
validity. Crevier  v.  Mayor,  etc.,  of  New  TorJc,  12  Abb.  (N.  S.)  340 ; 
see  Marsh  v.  Oity  of  BrooTdyn,  59  N.  Y.  (14  Sick.)  280  ;  Neioell 
v.  Wheeler,  48  N.  Y.  (3  Sick.)  486  ;  Gage  v.  Billings,  m  111.  268 ; 
Lee  V.  Buggies,  62  id.  427 ;  Hamilton  v.  Fond  Du  Lac,  25  Wis. 
490 ;  Taylor  v.  Rountree,  28  id.  391 ;  Loud  v.  Charlestown,  99 
Mass.  208  ;  Hunnewell  v.  Charlestown,  106  id.  350.  But  in  some 
of  the  States,  relief  is  given  solely  upon  the  ground  of  the  ille- 
gality of  the  tax.  See  Scofield  v.  Lansing,  17  Mich.  437 ;  Mc- 
Pike  V.  Pen,  51  Mo.  63.  In  a  recent  case  in  New  York,  it  was 
held,  that  a  party  has  no  such  constitutional  right  to  the  aid  of 
a  court  of  equity  for  the  purpose  of  removing  the  apparent  lien 
of  a  void  assessment  upon  his  lands  as  that  the  legislature  may 
not  deprive  him  of  that  particular  remedy.  It  is  only  when  the 
pretended  lien  is  sought  to  be  enforced  by  the  taking  of  his  prop- 
erty, that  the  owner  is  protected  by  the  constitution,  A  statute, 
therefore,  depriving  the  courts  of  the  power  to  give  such  relief, 
and  the  party  the  benefit  of  such  remedy,  is  constitutional  and 

Vol.  L  — 84 


666  BILL  TO  REMOVE  CLOUD  ON  TITLE. 

valid.  Lennon  v.  Mayor,  etc.,  of  New  York  City,  55  N.  Y.  (10 
Sick.)  361 ;  see  Astor  v.  Mayor,  etc.,  of  New  York,  7  Jones  & 
Sp.  (N.  Y.)  120 ;  62  N.  Y.  (17  Sick.)  580 ;  Rae  v.  Mayor,  etc.,  of 
New  York,  7  Jones  &  Sp.  192. 

ARTICLE  11. 

WHEN  THE  KEMEDY  WILL  NOT  LIE. 

*  Section  1.  Where  party  is  out  of  possession.  As  a  general  rule, 

a  party  out  of  possession  has  no  right  to  resort  to  equity  to 
remove  a  cloud  upon  title.  Apperson  v.  Ford,  23  Ark.  746 ; 
Herrington  v.  Williams,  31  Tex.  448 ;  Polk  v.  Pendleton,  31  Md. 
118;  Hay  thorn  v.  Margerem,  7  N.  J.  Eq.  (3  Halst.)  324;  Lake 
Bigler  Road  Co.  v.  Bedford,  3  Nev.  399  ;  Burton  v.  Gleason,  56 
111.  25 ;  Olark  v.  Covenant,  etc.,  Ins.  Co.,  52  Mo.  272  ;  see  Bar- 
ron V.  Bobbins,  22  Mich.  42  ;  Thompson  v.  Lynch,  29  Cal.  189 ; 
Branch  v.  Mitchell,  24  Ark.  431 ;  Almony  v.  Hicks,  3  Head 
(Tenn.),  39 ;  Low  v.  Staples,  2  Nev.  209 ;  CBrien  v.  Creig,  10 
Kans.  202  ;  Taylor  v.  Rountree,  28  Wis.  391.  Nor  has  an  execu- 
tor or  administrator  any  right  to  file  a  bill  in  equity,  for  the  pur- 
pose of  removing  a  cloud  from  the  real  estate  of  a  decedent ;  at 
least,  not  until  a  license  to  sell  has  been  obtained.  Paine  v. 
First  Div.,  etc.,  R.  R.  Co.,  14  Minn.  Q6 ;  Gridley  v.  Watson,  63 
111.  186  ;  Shoemate  v.  Lockridge,  53  id.  503. 

§  2.  Complainant's  title  doubtful.  Where  the  complainant 
himself  has  no  title,  or  a  doubtful  title,  a  court  of  equity  will 
not  afford  him  relief.  Ross  v.  Young,  5  Sneed  (Tenn.),  627  ; 
Huntington  v.  Allen,  44  Miss.  654  ;  ^Yest  v.  Schnebley,  54  111.  523. 
Nor  will  equity  grant  relief  where  there  is  a  doubt  as  to  the  legal 
construction  of  a  deed.  Brown  v.  Austen,  35  Barb.  841,  364  ;  S. 
C,  22  How.  (N.  Y.)  394. 

§  3.  Instrument  void  on  its  face.    If  the  instrument  claimed 
to  constitute  the  cloud  is  void  upon  its  face,  a  court  of  equity 
will  not  interfere  to  remove  it,  because  such  an  instrument  can 
work  no  mischief.     Crooke  v.  Andrews,  40  N.  Y.  (1  Hand)  547 
Weller  v.  Si.  Paul,  5  Minn.  95  ;  Head  v.  James,  13  Wis.  641 
Meloy  V.  Dougherty,  16  id.  269  ;  Cohen  v.  Sharp,  44  Cal.  29 
Hartford  v.  Chipman,  21  Conn.  488  ;  and  the  same  is  true, 
although  the  invalidity  does  not  appear  upon  the  face  of  the 
instrument,  if  it  necessarily  appears  in  some  one  of  the  links  of 
title  which  the  claimant  would  have  to  establish  in  order  to  give 
the  instrument  force  and  effect.    Fonda  v.  Sage,  48  N.  Y.  (3 


BILL  TO  EEMOVE  CLOUD  ON  TITLE.  667 

Sick.)  173 ;  affirming  S.  C,  46  Bajrb.  109 ;  but  see  Almony  v. 
Hicks,  3  Head  (Tenn.),  39.  Thus,  a  father  died  seized  of  real 
estate,  leaving  two  children,  his  heirs  at  law,  who  became  ten- 
ants in  common  of  the  real  estate.  One  of  them  executed  a 
mortgage  upon  the  whole  real  estate,  and  it  was  held  that  this 
did  not  create  a  cloud  upon  the  title  of  the  co-tenant  which  a 
court  of  equity  would  remove,  for  the  reason  that  a  claimant 
under  the  mortgage  title  would  have  to  prove  the  seizin  of  the 
father  and  the  descent  to  the  two  heirs,  and  it  would  thus  neces- 
sarily appear  that  the  mortgage  was  only  a  lien  upon  an  undi- 
vided half  of  the  real  estate.  Ward  v.  Dewey,  16  N.  Y.  (2 
Smith)  519.  In  further  illustration  of  the  rule,  see  Marsh  v. 
Olty  of  Brooklyn,  69  N.  Y.  (14  Sick.)  280  ;  Scott  v.  Onderdonk, 
14  N.  Y.  (4  Kern.)  9  ;  Wood  v.  Seely,  32  N.  Y.  (5  Tiff.)  105  ;  Camp 
V.  Elston,  48  Ala.  81 ;  Cohen  v.  Sharp,  44  Cal.  29 ;  Shepard- 
son  V.  Milwaukie  county,  28  Wis.  593.  In  Almony  v.  Hicks, 
3  Head  (Tenn.),  39,  it  was  held,  that  the  jurisdiction  of  a 
court  of  equity  to  remove  cloud  upon  title  will  be  exercised 
whether  the  character  of  the  deed  or  other  instrument  com- 
plained of  appears  upon  its  face  or  otherwise  ;  and  although  the 
defendants  are  in  possession,  and  complainants  have  the  legal 
title,  and  might  sue  at  law  for  the  recovery  of  the  land,  that  not 
being  esteemed  adequate  relief.  See  also  TJiompson  v.  Lynchy 
29  Cal.  189  ;  Branch  v.  Mitchell,  24  Ark.  431 ;  Carlisle  v.  Ti7i- 
dall,  49  Miss.  229 ;  Anderson  v.  Talhot,  1  Heisk.  (Tenn.)  407 ; 
Mullins  V.  Akin,  2  id.  535. 

§  4.  Other  cases.  It  has  been  said,  "  that  can  never  be  consid- 
ered a  legal  cloud  which  cannot  for  a  moment  obstruct  the 
unaided  rays  of  legal  science  where  they  are  brought  to  bear 
upon  the  supposed  obscurity."  Van  Dor  en  v.  The  Mayor,  etc.^ 
of  New  York,  9  Paige,  388.  A  bill  to  remove  cloud  upon  title 
will  not,  therefore,  lie,  where  it  is  apparent  from  an  inspection 
of  a  deed  or  writing,  that  no  danger  to  the  title  or  interest  of  the 
complainant  is  to  be  apprehended.  Cox  v.  Clift,  2  N.  Y.  (2 
Comst.)  118;  Farnham  v.  Campbell,  34  N.  Y.  (7  Tiff.)  480; 
Tarrent  v.  Booming  Co.,  22  Mich.  354.  And  no  relief  will  be 
granted  where  an  act  en  pais  is  complained  of  as  a  cloud  on 
title,  where  the  act  does  not  itself,  and  without  concurring  facta 
and  circumstances,  proved  aliunde,  establish  any  interest  in,  or 
title  to,  the  premises.  .Thus,  an  attachment  against  the  property 
of  a  husband,  and  a  levy  thereunder  upon  the  wife's  real  estate, 
and  the  filing  of  a  notice  of  Us  pendens  constitute  prima  facie 


668  BILL  TO  REMOVE  CLOUD  ON  TITLE. 

no  real  or  apparent  incumbrance  or  hindrance  to  or  upon  the 
wife's  title,  and  a  court  of  eqliity  will  not  interfere,  at  the  wife's 
suit,  to  discharge  the  attachment  levy  and  vacate  the  notice  of 
lis  pendens  as  a  cloud  upon  her  title.  Mulligan  v.  Baring,  3 
Daly  (N.  Y.),  75. 

A  claim  by  a  vendor,  to  collect  unpaid  purchase-money  from 
lands  sold  and  conveyed,  does  not  constitute  a  cloud  on  the  title 
of  a  judgment  creditor  of  the  purchaser,  who  has  obtained  a 
decree  that  the  purchaser  holds  his  interest  in  the  lands  as  trus- 
tee for  the  satisfaction  of  his  indebtedness  to  such  creditor. 
Bennett  v.  HotcTiMss,  17  Minn.  89.  And  where  the  complain- 
ants in  a  bill  sought  to  have  certain  conveyances  set  aside,  and 
they  claimed  as  purchasers  at  a  sale  under  execution,  and  it  ap- 
peared that  when  judgment  was  rendered  the  judgment  debtor 
had  no  title,  either  legal  or  equitable,  in  the  land,  the  bill  was 
dismissed.    McDowell  v.  Shields,  12  Mo.  441. 

The  cases,  generally,  in  which  courts  of  equity  have  refused 
their  interference  to  remove  clouds  upon  title  are,  where  such 
interference  was  unnecessary,  vexatious  and  expensive,  because 
the  instrument  or  other  proceeding  in  question  was  void  on  its 
face,  or  had  already  been  adjudged  void.  Hartford  v.  Qhip- 
men,  21  Conn.  488;  see  HotcJikiss  v.  Elting,  36  Barb.  38  ;  Butler 
V.  Viele,  44  id.  166;  Kay  v.  Scales,  37  Penn.  St.  31.  Gross 
inadequacy  of  price  is  such  a  badge  of  fraud  that,  although  it 
will  not,  per  se,  authorize  a  court  of  equity  to  declare  the  title 
to  land  void,  it  will  justify  such  court  in  refusing  to  aid  in 
removing  clouds  upon  the  title.  Hu7itington  v.  Allen,  44  Miss. 
654.  And  a  bill  which  states  only  a  pretended  title  in  the 
respondent,  and  prays  for  relief  against  it  on  the  ground  of  an 
apprehended  injury,  cannot  be  maintained.  Torrent  v.  Boom- 
ing Co.,  22  Mich.  354. 

ARTICLE  III. 

MODE   OF   GRANTING   RELIEF. 

Section  1.  In  generaL  It  is  impossible  to  lay  down  rules 
which  will  cover  all  the  cases  in  which  a  court  of  equity  will  inter- 
pose its  jurisdiction  to  remove  a  cloud  upon  title.  This  jurisdic- 
tion does  not  rest  upon  any  arbitrary  rules,  but  depends  upon 
the  facts  of  each  case  ;  and  whether  it  shall  be  exercised  or  not, 
is  generally  in  the  discretion  of  the  equity  court.  Great  caution 
will  be  exercised  by  the  courts  to  prevent  abuse,  and  in  many 
cases  the  parties  must  be  left  to  their  remedies  at  law.    See 


BILL  TO  REMOVE  CLOUD  ON  TITLE.  669 

Fonda  v.  Sage,  48  N.  Y.  (3  Sick.)  173  ;  Glazier  v.  Bailey,  47 
Miss.  395.  Relief  is  afforded  upon  the  principle,  quia  timet ; 
and  it  is  now  fully  established  that,  in  granting  sa  ch  relief,  a 
court  of  equity  has  jurisdiction  to  set  aside  deeds  and  other 
legal  instruments,  which  are  a  cloud  upon  title,  and  to  order 
them  to  be  delivered  up  and  canceled.  Hamilton  v.  Cum^mins, 
1  Johns.  Ch.  517  ;  Leigh  v.  EmrliarV  s  ExWs,  4  T.  B.  Monr.  (Ky.) 
380 ;  Apthorp  v.  ComstocTc,  2  Paige,  482  ;  Petit  v.  Shepherd,  5 
id.  493  ;  Burt  v.  Cassety,  12  Ala.  734  ;  Hall  v.  Fisher,  9  Barb. 
17 ;  Kimherly  v.  Fox,  27  Conn.  307 ;  Tucker  v.  Kenniston,  47 
N.  H.  267,  270.  It  is  likewise  settled  by  authority,  that  upon 
the  same  principle  that  the  court  will  remove  a  cloud  already 
existing  upon  the  owner's  title,  it  will  interfere  by  injunction  to 
prevent  a  conveyance  or  other  proceeding  that  would  create  such 
a  cloud.  PetitY.  Shepherd,  5  Paige,  493;  Mannv.  City  of  Vtica, 
44  How.  (N.  Y.)  334.  Thus,  where  a  municipal  corporation  sold 
lands  for  non-payment  of  an  alleged  assessment,  which  in  fact 
was  not  made,  it  was  enjoined  from  making  a  conveyance,  which, 
by  statute,  would  be  prima  facie  evidence  of  all  the  facts  recited, 
and  the  certijficate  of  such  sale  was  decreed  to  be  canceled. 
Scott  V.  OnderdonTc,  14  N.  Y.  (4  Kern.)  9.  So,  where  land  was 
sold  on  execution  against  one  who  held  it  as  trustee  for  a 
married  woman,  and  a  certificate  given  to  the  purchaser  by  the 
sheriff,  it  was  held  that  this  was  a  cloud  upon  the  title,  which 
she  might  remove  by  suit  in  equity  before  the  time  of  redemp- 
tion had  expired.  Lounshury  v.  Purdy,  18  N.  Y.  (4  Smith)  515. 
So  it  is  held  that  a  tax  certificate  resting  on  an  illegal  tax  is  a 
cloud  which  equity  will  remove,  and  restrain  the  completion  of 
the  sale.  Dean  v.  Madison,  9  Wis.  402 ;  see  Knowlton  v.  Su- 
pervisors,  etc.,  id.  410  ;  Laplaine  v.  MoAison,  id.  409.  And 
where  the  sheri^  was  about  to  sell  the  plaintiff's  homestead  ille- 
gally, the  court  interfered  by  its  decree  to  prevent  the  sale,  hold- 
ing that  it  was  the  same  in  principle  as  removing  a  cloud  already 
created.  ShattucTc  v.  Carson,  2  Cal.  588 ;  see  Guy  v.  Hermance, 
5  id.  73  ;  Bent  v.  Cassidy,  12  Ala.  36  ;  Norton  v.  Beamr,  5  Ohio, 
178.  In  general,  an  execution  sale  may  be  enjoined,  where  it 
would  cause  a  cloud  on  the  title  of  the  complainant.  Key,  etc. 
V.  Munsell,  19  Iowa,  305 ;  Bell  v.  Greenwood,  21  Ark.  249  ;  Pix- 
ley  V.  Huggins,  15  Cal.  127.  Though  in  PraJce  v.  Jones,  27  Mo. 
428,  it  is  held,  that  where  a  sheriff's  sale  would  not  pass  any 
title  to  the  purchaser,  such  sale  will  not  be  enjoined,  on  the 
ground  merely  that  it  might  cast  a  cloud  on  the  title. 


670  BONDS. 


CHAPTER  XXVIII. 

BONDS. 

TITLE  I. 

OF  BONDS  IN  GENERAL. 

ARTICLE  L 

NATUEE  AND  DEFINITIOlir. 

Section  1.  In  generaL  An  obligation  or  bond  is  an  instrument 
in  writing  and  under  seal,  whereby  the  obligor  declares  himself, 
and  usually  his  heirs,  executors  and  administrators,  bound  to 
pay  a  certain  sum  of  money  to  another  at  a  day  named.  If  this 
be  all,  the  bond  is  called  a  single  one,  simplex  ohligatio.  But 
there  is  generally  a  condition  added,  that,  if  the  obligor  does 
some  particular  act,  the  obligation  shall  be  void,  or  else  shall 
remain  in  full  force  ;  as  payment  of  rent,  performance  of  cove- 
nants in  a  deed,  or  repayment  of  a  principal  sum  of  money  bor- 
rowed of  the  obligee,  with  interest,  which  principal  sum  is 
usually  one-half  of  the  penal  sum  specified  in  the  bond.  See  2 
Broom  &  Had.  Com.  (Wait's  Ed.  Notes)  767  ;  Wood  v.  Willis, 
110  Mass.  454;  Hargroves  v.  Coolie,  15  Ga.  321;  States.  Thom- 
son, 49  Mo.  188  ;  Denton  v.  Adams,  6  Yt.  40 ;  Gilbert  v.  An 
tJiony,  1  Yerg.  (Tenn.)  69  ;  Harman  v.  Harman,  1  Baldw.  129. 
This  security  is  also  called  a  specialty  ;  the  debt  being  therein 
particularly  specified  in  writing.  Taylor  v.  Olazer,  2  Serg.  &  R. 
502.  And  the  party's  seal,  acknowledging  the  debt  or  duty,  and 
confirming  the  contract  renders  it  a  security  of  a  higher  nature 
than  those  entered  into  without  the  solemnity  of  a  seal.  Bac. 
Abr.,  Obligations,  A. 

A  bond  for  money,  to  be  void  upon  the  doing  of  a  certain 
thing,  is,  in  legal  eflTect,  a  contract  to  do  that  thing.  Waynick 
V.  Richmond,  11  Kan.  488. 

If  the  obligor  in  a  bond  hinds  himself,  without  adding  his 
heirs,  executors  and  administrators,  the  executors  and  adminis- 
trators are  bound,  but  not  the  heir  ;  for  the  law  will  not  imply 
the  obligation  upon  the  heir.  Sheppard's  Touchst.  369  ;  Coke 
Litt.  209,  a. 


BOIS^DS.  671 


ARTICLE  II. 

PARTIES. 

Section  1.  Obligor.  All  persons  who  have  the  capacity  to  con- 
tract, and  whom  the  law  regards  as  having  sufficient  freedom  for 
that  purpose,  may  bind  themselves  in  bonds  and  obligations. 
But,  if  a  person  is  illegally  restrained  of  his  liberty  and  during 
such  restraint  enters  into  a  bond  to  the  person  who  causes  the 
restraint,  the  obligation  may  be  avoided  for  duress  of  imprison- 
ment. Thompson  v.  Lockwood,  15  Johns.  256,  259 ;  Governor  v. 
Williams,  Dudley  (Ga.),  424 ;  Eddy  v.  Herrin,  17  Me.  338.  And 
a  bond  executed  through  fear  of  unlawful  imprisonment  may  be 
avoided  on  account  of  duress.  Whitefield  v.  Longfelloio^  13  id. 
146.  So,  under  some  circumstances,  a  bond  may  be  avoided  by 
duress  of  goods.  Collins  v.  Westbury,  2  Bay  (S.  C),  211  ;  Sas- 
portas  V.  Jennings,  1  id.  470  ;  Spaids  v.  Barrett,  57  111.  289  ;  S, 
C,  11  Am.  R.  10 ;  see  Skeate  v.  Beale,  11  Ad.  &  El.  983 ;  Atlee  v. 
Backhouse,  3  Mees.  &  W.  650 ;  Nelson  v.  Suddarth,  1  Hen.  & 
Munf.  (Va.)  350 ;  Foshay  v.  Ferguson,  5  Hill  (N.  Y.),  158.  It  is  a 
rule  of  the  common  law,  that  a  married  woman  cannot,  during  her 
coverture,  make  an  obligatory  contract  {Lewis  v.  Lee,  3  B.  &  C. 
291 ;  Marshall  v.  Button,  8  T.  R.  545) ;  and  her  bond  is  ipso 
facto  void,  and  shall  neither  bind  her  nor  her  husband.  Bac. 
Abr.,  Obligations,  D. ;  see  Concord  Bank  v.  Bellis,  10  Cush. 
(Mass.)  276.  So,  the. bond  of  an  infant  is  void  at  law,  though  he 
fraudulently  represents  himself  to  be  of  age  at  the  time.  Colcock 
V.  Ferguson,  3  Desau.  (S.  C.)  482  ;  Conroe  v.  Birdsall,  1  Johns. 
Cas.  (N.  Y.)  127.  And  although  he  confirms  it  after  he  is 
twenty-one,  still  it  is  invalid  unless  the  confirmation  be  of  as 
high  authority  as  the  bond  itself.  Baylis  v.  Dineley,  3  Maule  & 
Selw.  477.  Likewise,  if  a  person  non  compos  mentis  enters  into 
a  bond,  it  is  void.  Yates  v.  Boen,  2  Stra.  1104;  Lang  v.  Whid- 
den,  2  N.  H.  435  ;  Rice  v.  Peet,  15  Johns.  503 ;  Emery  v.  Hoyt, 
46  111.  258.  And  a  bond  may  be  avoided  by  reason  of  excessive 
drunkenness  at  the  time  of  executing  it.  Cole  v.  Bohins,  Bull. 
N.  P.  172 ;  Gore  v.  Gibson,  13  M.  &  W.  625.  And  see  Cum^ 
mings  v.  Henry,  10  Ind.  109  ;  Caulkins  v.  Fry,  35  Conn.  170 ; 
Wilson  V.  Bigger,  7  Watts  &  Serg.  (Penn.)  111.  But  if,  on  be- 
coming sober,  the  party  intoxicated  retain  what  he  received  in 
consideration,  he  will  be  held  to  have  confirmed  it.  Williams 
V.  Inabnet,  1  Bailey  (S.  C),  343 ;  Guy  v.  McLean,  1  Dev\  (N. 


672  BONDS. 

C.)  47  ;  Seymour  v.  Delancy,  3  Cow.  445 ;  Matthews  v.  Baxter, 
L.  R.,  8  Ex.  132 ;  Joest  v.  Williams,  42  Ind.  565.  And  if  an 
infant,  feme  covert,  etc.,  who  are  disabled  by  law  to  bind  them- 
selves in  bonds,  enter  together  with  a  stranger,  who  is  under 
none  of  these  disabilities,  into  an  obligation,  the  stranger  is 
bound,  though  it  be  void  as  to  the  infant,  etc.  Bac.  Abr.,  Obli- 
gations, D.  So,  a  joint  obligor  on  a  bond  cannot  take  advan- 
tage of  the  fact  that  his  co-obligor  executed  the  bond  while 
under  duress.     Spaulding  v.  Craioford,  27  Tex.  155. 

§  2.  Obligee.  Infants,  idiots,  as  also  a  feme  covert,  may  be 
obligees.  An  alien  may  likewise  be  an  obligee  ;  for  since  he  is 
allowed  to  trade  and  traffic  with  us,  it  is  but  reasonable  to  give 
him  all  that  security  which  is  necessary  in  his  contracts,  and 
which  will  the  better  enable  him  to  carry  on  his  commerce  and 
dealings  among  us.  Co.  Litt.  129  l>. ;  Wells  v.  Williams,  1  Ld. 
Raym.  282.  But  at  common  law  a  feme  covert  can  neither  be 
obligor  or  obligee  to  her  husband,  nor  vice  versa,  being  but  one 
person  in  law.  Bac.  Abr.,  Obligations,  D. ;  and  a  person  cannot 
be  bound  to  himself  {Smith  v.  Lusher,  5  Cow.  688,  709),  even  in 
connection  with  others.  lb.  ;  Davis  v.  Somerville,  4  Dev.  (N. 
C.)  382.  But,  it  has  been  held,  that  a  bomd  given  by  the  hus- 
band to  the  intended  wife  prior  to  marriage,  conditioned  for  pay- 
ment of  money  to  her  after  the  obligor's  death,  is  not  extinguished 
by  the  coverture ;  and  that  such  a  bond  may  be  enforced  at  law 
against  the  heirs  of  the  husband.  Cage  v.  Acton,  1  Ld.  Raym. 
615 ;  Milhourn  v.  Ewart,  5  Term  R.  381. 

ARTICLE  III. 

FORM   AND   CONTENTS   OF   BOND. 

Section  1.  In  general.  At  common  law,  a  bond  is  a  deed 
signed,  sealed,  and  delivered.  It  is  first  to  be  written,  by  which 
it  is  exempted  from  that  uncertainty  arising  from  the  imperfec- 
tion of  memory  to  which  unwritten  contracts  must  always  be 
exposed.  It  is  then  to  be  sealed  by  the  party  to  be  bound, 
and  lastly,  to  be  delivered  by  him,  which  is  the  consummation 
of  his  resolution.     Gilbert  v.  Anthony,  1  Yerg.  (Tenn.)  69. 

But  the  law  does  not  require  any  precise  form  of  words  as 
essentially  necessary  to  create  a  bond  or  obligation.  Any  mem- 
orandum in  writing  under  seal,  acknowledging  a  debt,  or  denot- 
ing the  intention  of  the  party  to  bind  himself  for  the  payment  of 
a  sum  of  money,  will  oblige  him  as  effectually  as  the  most  formal 


BONDS.  673 

words,  provided  the  writing  be  sealed  and  delivered.  Such,  for 
example,  are  the  following  :  "I,  A.  B.,  have  borrowed  lOl.  of  C. 
D.,"  or  "Memorandum  that  A.  owes  B.  10^.,"  or  "I  have  agreed 
to  pay  J.  S.  IdV  See  Sawyer  v.  Mawgridge,  11  Mod.  218 ; 
Watson  V.  Sfiaed,  Vent.  238  ;  Bedozo^s  Case,  1  Leon.  25.  But,  a 
writing  purporting  to  be  an  obligation  for  the  payment  of  money, 
without  naming  a  person  as  obligee,  is  not  a  bond.  PelJiam  v. 
Grigg,  4  Ark.  141 ;  Phelps  v.  Call,  7  Ired.  L.  (N.  C.)  262.  The 
date  of  a  bond  is  not  essential.  It  will  be  valid  though  there  is 
no  date,  or  the  date  is  erroneous.  Pierce  v.  Ricliardson,  37  N. 
H.  306  ;  Fournier  v.  Cyr,  64  Me.  32. 

§  2.  Consideration.  Every  bond,  from  the  solemnity  of  the 
instrument,  carries  with  it  ah  internal  evidence  of  a  good  consid- 
eration, and  is  to  be  supported  in  a  court  of  law,  except  facts 
are  disclosed  to  the  court  whereby  the  consideration  appears  to 
be  immoral,  illegal,  or  against  the  policy  of  the  law.  Page  v. 
Trufant,  2  Mass.  159  ;  Dorr  v.  Munsell,  13  Johns.  430  ;  Hold- 
ridge  V.  Allin,  2  Root  (Conn.),  139;  Coyle  v.  Fowler,  3  J.  J. 
Marsh.  (Ky.)  473  ;  Harrell  v.  Watson,  63  N.  C.  454 ;  Parker  v. 
Flora,  id.  474  ;  Harris  v.  Harris,  23  Gratt.  (Ya.)  737.  No  con- 
sideration need  pass  directly  between  the  obligee  in  a  bond  and 
the  surety.  The  consideration  which  supports  the  principal's 
contract  will  support  that  of  the  surety.  Notwithstanding  the 
promise  of  the  surety  may  appear  to  be  founded  on  a  past  or 
executed  consideration,  he  may,  nevertheless,  be  liable  ;  for  the 
consideration  may  have  moved  at  the  instance  or  request  of  the 
surety.  And  if  so,  the  promise  is  not  a  naked  one,  but  is  coupled 
with  the  precedent  request,  and  the  subsequent  undertaking  will 
be  valid  and  binding  upon  him ;  and  such  request  may  be 
inferred  from  the  circumstances  and  the  nature  of  the  trans- 
action.    Robertson  v.  Finley,  31  Mo.  384. 

An  illegal  consideration  vitiates  a  bond  no  less  than  a  parol 
agreement.  Trustees  v.  Gallatin,  4  Cow.  340  ;  Morton  v.  Fletclier, 
2  A,  K.  Marsh.  (Ky.)  138  ;  among  the  instances  of  which,  are  the 
following  :  Bonds  given  for  money  won  at  play.  Davidson  v. 
Givins,  2  Bibb  (Ky.),  200 ;  or  for  the  price  of  tickets  in  a  lottery 
not  authorized  by  law.  Morton  v.  Fletcher,  2  A.  K.  Marsh. 
(Ky.)  138  ;  a  bond  given  to  indemnify  an  officer  for  not  returning 
an  execution.  Greemoood  v.  Colcock,  2  Bay  (S.  C),  67 ;  or  to 
induce  him  to  perform  a  duty  required  of  him  by  law.  Mitchell 
v.  Yance,  5  T.  B.  Mon.  (Ky.)  529  ;  or  to  indemnify  him  for  per- 
mitting an  escape.  Lowery  v.  Barney,  2  D.  Chip.  (Vt.)  11 ;  a  bond 

Vol.  I.— 85 


674  BONDS. 

given  to  an  officer  in  consideration  of  an  act  that  he  has  no  legal 
authority  to  do.  Moore  v.  Allen,  3  J.  J,  Marsh.  (Ky.)  621  ;  or, 
a  bond  for  money  engaged  to  be  given  for  the  sale  of  an  office 
concerning  the  administration  of  justice.  Davis  v.  Hull,  1  Litt. 
(Kj)  9  ;  Leiois  v.  Knox,  2  Bibb  (Ky.),  453.  So,  a  bond  given  to 
suppress  a  prosecution  for  malicious  mischief  is  void.  Cameron 
V.  McFarland,  2  Car.  Law  Repos.  415  ;  as  is  likewise  a  bond 
given  in  consideration  of  the  obligee's  withdrawing  opposition 
to  an  insolvent  debtor's  discharge.  Tuxbury  v.  Miller,  19 
Johns.  311 ;  Goodwin  v.  Blake,  3  Monr.  (Ky.)  106  ;  but  see  Price 
V.  Summiers,  5  N.  J.  L.  (2  South.)  578.  A  bond  given  on  an  im- 
moral consideration,  as,  if  it  be  given  by  a  man  to  a  woman  as  a 
premium  pudicitiCB,  in  consideration  of  future  cohabitation,  is 
void.  Tromnger  v.  McBumey,  5  Cow.  253  ;  Lady  Cox's  Gase^ 
3  P.  Wms.  339 ;  Walker  v.  Perkins,  Burr.  1568 ;  Walker  v. 
Gregory,  36  Ala.  180 ;  Singleton  v.  Bramer,  Harper  (S.  C), 
201.  Though  it  is  otherwise  if  the  bond  be  given  in  consider- 
ation of  'past  cohabition.  lb. ;  and  see  Howell  v.  Fountain,  3 
Ga.  176  ;  Winnehinner  v.  Weisiger,  3  T.  B.  Monr.  (Ky.)  35 ; 
Bunn  V.  Y/inthrop,  1  Johns.  Ch.  329 ;  notwithstanding  the 
obligor  be  a  married  man  during  the  whole  period  of  cohabi- 
tation. Nye  V.  Mosely,  6  Barn.  &  C.  133  ;  Lady  Cox' s  Case. 
3  P.  Wms.  339.  Bonds  in  restraint  of  trade  are  void ;  as 
for  example,  a  bond  conditioned  that  the  obligor  shall  never 
carry  on,  or  be  concerned  in,  the  business  of  founding  iron. 
Alger  v.  TTiacTier,  19  Pick.  (Mass.)  51  ;  or  a  covenant  by  the 
vendor  of  marl  land,  that  neither  he  nor  his  assigns  will  sell  marl 
from  the  adjoining  land.  Breioer  v.  Marshall,  19  N.  J.  Eq.  537. 
But  it  is  otherwise,  if  the  condition  be  only  not  to  trade  within 
certain  reasonable  limits.  See  McGlurg^s  Appeal,  58  Penn.  St. 
51 ;  Nobles  v.  Bates,  7  Cow.  307;  Reese  v.  Hendricks,  1  Leg.  Gaz. 
Rep.  (Penn.)  79.  Thus,  a  bond  not  to  engage  in  the  business  of 
iron  casting  within  sixty  miles  of  Calais,  said  area  containing 
but  few  places  of  much  business,  was  held  valid.  Whitney  v. 
Slayton,  40  Me.  224.  So,  the  rule  that  bonds  in  restraint  of  trade 
are  void  would  not  seem  to  apply  at  a  tim^  when  it  was  the 
policy  of  the  law  to  impose  restrictions  upon  commerce,  and 
consequently,  that  an  embargo  bond,  made  while  the  embargo 
laws  were  in  force,  would  be  binding  as  a  common-law  bond. 
Dixon  V.  United  States,  1  Brock.  177. 

§  3.  Seal.    There  cannot  be  at  comrhon  law  a  bond  without  a 
seal.     See  Denton  v.  Adams,  6  Vt.  40 ;   Cantey  v.  Duren,  Harp. 


BONDS.  675 

(S.  C.)  434;  State  v.  Hiompson^  49  Mo.  188  ;  Pease  v.  Lawson, 
33  id.  35  ;  Turner  v.  Field,  44  id.  382.  And  it  is  held,  that  the 
common  law  intended,  by  a  seal,  an  impression  upon  wax  or 
wafer,  or  some  other  tenacious  substance  capable  of  being  im- 
pressed. Warren  v.  Lynch,  5  Johns.  239 ;  Goit  v.  Millikin,  1 
Denio,  376.  In  New  Hampshire  a  distinct  impression  of  the 
seal  upon  paper  is  held  to  be  a  sufficient  seal,  without  wax  or 
wafer.  9  N.  H.  558 ;  Allen  v.  Sullivan  R.  H.,  32  id.  446.  In 
Maryland,  a  scroll  has  been  considered  a  seal  from  the  earliest 
period  of  its  judicial  history.  TrasTier  v.  EmrJiart,  3  Gill  & 
Johns.  234,  246.  And  in  many  of  the  other  States,  the  common-law 
seal  has  become  well  nigh  obsolete,  the  statutory  "  scrawl,  by  way 
of  seal,"  having  almost  entirely  superseded  it.  Among  such 
States  may  be  mentioned  New  Jersey,  Delaware,  Virginia,  Ohio, 
Pennsylvania,  Kentucky,  Indiana,  Georgia,  Illinois  and  Missouri. 
See  Jones  v.  Longwood,  1  Wash.  (Va.)  42 ;  Force  v.  Craig,  2  Halst. 
(N.  J.)  272  ;  Alexander  v.  Jameson,  5  Binn.  (Penn.)  238 ;  RelpTi  v. 
Gist,  4  M'Cord  (S.  C),  267  ;  YanUaricum  v.*  Yeo,  2  Blackf.  (Ind.) 
322 ;  Harden  v.  Webster,  29  Ga.  427 ;  Pease  v.  Lawson,  33  Mo. 
35.  But  the  fact  that  a  writing  contains  the  words,  "  sealed 
with  my  seal,"  etc.,  when  there  is  no  seal  or  scroll  attached,  will 
not  make  it  a  bond  or  sealed  instrument.  Chilton  v.  People,  66 
111.  501.  It  is  provided  by  statute  in  Michigan,  that  no  bond 
shall  be  deemed  invalid  for  want  of  a  seal.  Mich.  Comp.  Laws, 
§  4550.  And  this  provision  gives  an  unsealed  instrument  all  the 
force  and  effect  that  a  sealed  one  of  the  same  tenor  would  have. 
McKinney  v.  Miller,  19  Mich.  142.  So  in  Connecticut,  by 
statute,  in  1838,  bonds  executed  without  seal  are  declared  to  be 
valid,  as  though  the  same  had  been  sealed.  Fish  v.  Brown,  17 
Conn.  343.  And  under  a  statutory  act  in  Tennessee,  abolishing 
private  seals,  a  bond  is  a  deed  signed  and  delivered.  Act  of 
1850,  ch.  20,  §  1  ;  Code,  1804.  And  see  Bancroft  v.  Stanton,  7 
Ala.  351.  The  word  "  seal,"  printed  between  brackets,  on  an 
attachment  bond,  and  adopted  by  the  parties  as  their  seal  or 
scroll,  was  held  a  sufficient  sealing  of  the  instrument  in  Missouri. 
Underwood  v.  Dollins,  47  Mo.  259.  And  a  bond  without  a  seal 
has  been  held  good  by  the  Supreme  Court  of  the  United  States. 
United  States  v.  Linn,  15  Pet.  290,  315. 

Several  obligors  may  adopt  one  seal  or  scroll.  Hollis  v.  Pondj 
7  Humph.  (Tenn.)  222.  And  a  bond  signed  by  "A,"  (l.  s.) 
"for  B,  C  and  D."  is  sufficiently  executed  as  the  bond  of  B,  C 
and  D,  by  their  agent,  although  only  one  seal  is  used.    Martin 


676  BONDS. 

V.  DortcTi,  1  Stew.  (Ala.)  479.  So,  where  a  bond  containing  the 
usual  allegation,  "sealed  with  our  seals,"  has  been  signed  and 
sealed  by  one  or  more  obligors,  and  an  additional  obligor  subse- 
quently signs,  and  delivers  the  same  as  his  bond,  without  affix- 
ing a  new  seal,  it  is  evidence  that  he  adopts  a  seal  already  affixed. 
PequaioTiett  v.  Matlies^  7  N.  H.  230.  A  bond  signed  in  the  name 
of  the  firm,  with  one  seal  only,  is  the  bond  of  the  partner  alone, 
who  signed  it.  Button  v.  Hampson,  Wright  (Ohio),  93  ;  Russell 
V.  Annahle,  109  Mass.  72. 

A  party  who  signs  and  seals  a  bond  will  be  bound  by  it, 
although  his  name  be  not  mentioned  in  the  body  of  the  instru- 
ment. Smith  V.  CrooTcer,  5  Mass.  538 ;  Fournier  v.  Cyr^  64  Me. 
35  ;  Blakey  v.  Blalcey,  2  Dana  (Ky.),  463  ;  Martin  v.  Bortch,  1 
Stew.  (Ala.)  479.  And  where  an  obligor  signs  his  name  and 
affixes  his  seal  in  the  space  between  the  penal  part  of  the  bond 
and  the  condition  thereof,  the  condition  is  as  much  a  part  of  the 
instrument  as  if  the  signature  was  at  the  foot  of  it.  Beedv.  BraJce, 
7  Wend.  345  ;  Fournier  v.  Cyr^  64  Me.  35 ;  and  see  Richardson 
V.  Boynton,  12  Allen  (Mass.),  138. 

An  instrument  of  writing  in  the  form  of  a  note,  purporting 
to  have  been  made  by  a  corporation,  with  the  seal  of  the  corpora- 
tion attached  thereto,  is  a  sealed  instrument,  and  must  be 
declared  on  as  such.     Benoist  v.  Carondelet,  8  Mo.  250. 

ARTICLE  IV. 

EXECUTION",  MODE   OF. 

Section  1.  Attestations,  etc.  A  bond  may  be  executed  by  an 
attorney  thereto  lawfully  authorized.  M''  Gandlish  v.  Hopkins, 
6  Call  (Va.),  208.  But  such  authority  must  be  under  seal.  De- 
lius  V.  Cawthorne,  2  Dev.  L.  (N.  C.)  90  ;  McNutt  v.  McMahon, 
1  Head  (Tenn.),  98.  And  it  is  only  by  a  writing  under  seal,  that 
a  principal  can  ratify  a  bond  executed  by  an  agent  without  com- 
petent authority.  Ingraham  v.  Edwards,  64  111.  526.  A  power 
of  attorney  to  execute  a  bond  will  be  presumed  to  have  been 
executed  on  the  day  of  its  own  date,  if  nothing  is  made  to  appear 
to  the  contrary.  Mager  v.  Hutchinson,  7  111.  (2  Gilm.)  265.  It 
is  not  necessary  to  the  execution  of  a  bond,  that  the  party  should 
himself  write  his  name  and  affix  his  seal  thereto.  If,  on  the  in- 
strument being  shown  to  him,  his  name  and  seal  having  been 
put  to  it  by  another,  he  acknowledges  it  to  be  his  act  and  deed, 
or  uses  words  equivalent  to  such  acknowledgment,  the  jury  may 


BONDS.  677 

find  it  to  be  his  deed.  Hill  v.  Scales,  7  Yerg.  (Tenn.)  410; 
Rhode  V.  LoiUhaln,  8  Blackf.  (Ind.)  413.  So,  acknowledging 
his  signature,  on  being  inquired  of,  without  intimating  that  he 
did  not  consider  himself  bound,  is  sufficient  to  bind  the  party  so 
signing  and  sealing.  Byers  v.  McClanalian,  6  Gill.  &  J.  (Md.) 
250.  Nor  is  it  necessary  that  a  witness  to  the  signature  sees  a 
party  sign  his  name.  It  is  enough  if  the  obligor  acknowledges 
it  to  be  his 'signature,  and  requests  the  witness  to  sign.  Pequaw- 
Jcett  V.  Mathes,  7  N.  H.  230. 

There  can  be  no  objection  to  the  manner  or  form  in  w^hich  an 
obligor  makes  his  signature  to  a  sealed  instrument,  provided  it 
appears  that  he  made  it  for  the  purpose  of  binding  himself. 
Hlnsaman  v.  Hinsaman,  7  Jones'  L.  (N".  C.)  510.  Thus  the  fact 
that  a  man  seals  and  delivers  a  bond  as  his,  in  which  he  is  named 
as  surety,  and  that  he  does  this  with  the  intent  to  become  a 
party  to  it,  is  amply  sufficient  to  justify  a  verdict  that  it  is  his 
bond,  though  his  name  is  placed  upon  it  in  the  proper  place  for 
tlie  name  of  a  witness.  Richardson  v.  Boynion,  12  Allen 
(Mass.),  138.  See  also  Argenbright  v.  Campbell,  3  Hen.  &  M. 
(Va.)  144. 

But  if  a  bond  is  not  read  to  the  party  executing  it,  and  he  can- 
not read,  and  the  contents  are  misrepresented,  it  will  not  bind 
him.  Green  v.  North  Buffalo  Township,  56  Penn.  St.  110.  So, 
where  an  illiterate  man  was  induced  to  sign  a  bond  by  the  fraud- 
ulent representation  that  it  was  a  petition,  he  was  held  not  liable 
thereon  although  the  obligee  was  not  aware  of  the  fraud.  Schuyl- 
Mll  county  v.  Copley,  67  Penn.  St.  386  ;  S.  C,  5  Am.  R.  441. 
And  a  bond,  executed  when  the  obligor  is  so  drunk  as  to  be 
incapable  of  contracting,  may  be  avoided.  Williams  v.  Inabet^ 
1  Bailey  (S.  C),  343.     See  ante,  art.  2,  §  1. 

A  bond  purporting  to  be  the  joint  obligation  of  a  principal  and 
sureties,  but  signed  by  the  latter  only,  is  bad.  Cutler  v.  ^Vhit- 
temore,  10  Mass.  442  ;  Adams  v.  Bean,  12  id.  139  ;  Wood  v.  Wash- 
burn, 2  Pick.  (Mass.),  24  ;  for  the  reason  that  it  is  presumed 
that  each  undertook  to  become  liable  only  if  the  others  did. 
Sacramento  v.  Dunlap,  14  Cal.  421 :  see  Sharp  v.  United  States, 
4  Watts  (Penn.),  21 ;  Haskins  v.  Lombard,  16  Me.  140  ;  Dair  v. 
United  States,  16  Wall.  1 ;  Johnson  v.  Weatlierwax,  9  Kan.  75  ; 
Loew  V.  Stoclcer,  68  Penn.  St.  226.  But  where  two  persons  exe- 
cute a  bond,  one  as  principal  and  the  other  as  surety,  they  are 
equally  bound  to  the  obligee.  Wilson  v.  Campbell,  2  111.  (1 
Scam.)  493  ;  and  a  bond  which  is  drawn  up  in  proper  form  to  be 


678  BONDS. 

signed  by  a  principal  and  a  surety,  is  well  executed,  if  it  is  first 
signed  by  the  surety,  and  afterward  in  his  absence,  but  before 
its  delivery,  is  signed  by  the  principal.  Eundell  v.  La  Fleur, 
6  Allen  (Mass.),  480.  The  obligor  of  a  bond  cannot  avoid  his 
liability  by  showing  that  he  was  induced  to  execute  the  bond  by 
the  fraud  of  one  of  his  co-obligors,  in  which  the  obligee  did  not 
participate.  Blgelow  v.  Comegys,  5  Ohio  St.  256  ;  see  Spauld- 
ing  V.  Crawford,  27  Tex.  155.  But,  if  a  bond  is  executed  jointly 
and  severally  by  three,  and  an  alteration  is  made  in  it  by  con- 
sent of  two,  in  the  absence  of  the  third,  and  the  obligee  after- 
ward erase  the  signature  and  seal  of  the  third  without  the  con- 
sent of  the  others,  the  bond  is  void.  Lote  v.  SJioape,  Walk. 
608  ;  Dewey  v.  Bradbury,  1  Tyler  (Vt.),  186. 

Where  the  name  of  a  party  appears  in  the  body  of  a  bond, 
but  is  not  subscribed  to  it,  there  is  not  as  to  such  party  a  valid 
execution  of  the  bond,  and  he  cannot  be  field  liable  thereon  on 
the  supposition  that  he  adopted  the  name  in  the  body  of  the 
bond  as  a  signing  of  it,  even  if  the  name  was  written  there  by 
himself.     Wild  Cat  Branch  v.  Ball,  45  Ind.  213. 

§  2.  Filling  up  blanks.  A  bond,  executed  in  blank  and  filled 
up  afterward  by  the  express  parol  authority  of  the  obligor,  is 
valid  ;  and  the  authorit}''  to  fill  up  the  blank  is  also  authority  to 
redeliver  it.  Gibhs  v.  Frost,  4  Ala.  720  ;  see  Bell  v.  Keefe,  13 
La.  Ann.  524  ;  Spencer  v.  Buclianan,  Wright  (Ohio),  583  ;  New- 
lin  V.  Beard,  6  W.  Va.  110.  But  such  parol  authority  may  be 
revoked  by  parol  also,  and  if  revoked  before  the  bond  is  com- 
pleted, the  authority  is  at  an  end.  Gibbs  v.  Frost,  4  Ala.  720.  And 
it  has  been  held,  that  a  paper  signed  and  sealed  in  blank,  with 
verbal  authority  to  fill  it  up,  which  is  afterward  done,  is  void  as 
to  the  party  so  signing,  etc.,  unless  he  afterward  deliver  it,  or 
acknowledge  and  adopt  it.  Perminter  v.  McDaniel,  1  Hill  (S. 
C),  267  ;  Byers  v.  McClanahan,  6  Gill  &  J.  (Md.)  250 ;  Ayers 
V.  Harness,  1  Ohio,  368 ;  Wynne  v.  Governor,  1  Yerg.  (Tenn.)  149. 
But  see  contra,  Wiley  v.  Moor,  17  Serg.  &  R.  (Penn.)  438  ;  see  also 
Franklin  Bank  v.  Bartlet,  Wright  (Ohio),  742  ;  Sigfried  v. 
Lei^an,  6  Serg.  &  R.  (Penn.)  308  ;  Bartlet  v.  Board  of  Education, 
59  111.  364  ;  McNuti  v.  McMahan,  1  Head  (Tenn.),  98.  A  bond 
with  a  blank  left  for  the  name  of  the  obligee  is  a  nullity.  It 
imposes  no  liability  upon  the  obligor,  and  confers  no  rights  on 
him  who  receives.  Nor  can  the  name  of  the  obligee  be  inserted 
by  an  agent  authorized  by  parol.  Preston  v.  Hull,  23  Gratt. 
(Va.)  600  ;  S.  C,  14  Am.  R.  163;   Upton  v.  Archer,  41  Cal.  85; 


BONDS.  679 

10  Am.  Rep.  266,  267,  268,  note ;  but  see  contra^  Field  v.  8tagg^ 
62  Mo.  534 ;  S.  C,  14  Am.  R.  435 ;  Van  Etta  v.  Etenson,  28 
Wis.  33 ;  9  Am.  Rep.  486 ;  Vose  v.  Dolan,  108  Mass.  155 ;  11 
Am.  Rep.  331.  See  ante,  art.  3,  §  1  ;  Edelin  v.  Sanders,  8  Md. 
118.  So,  a  bond  signed  by  the  defendant  before  the  name  of  the 
obligee,  or  tlie  amount  thereof  is  inserted,  is  not  the  deed  of  the 
defendant,  and  cannot  be  recovered  upon,  although  payments 
have  been  made  thereon.     Bar  den  v.  Southe^and,  70  N.  C.  528. 

§  3.  Delivery  and  acceptance.  Delivery  is  essential  to  the 
validity  of  a  bond.  Wild  Cat  Branch  v.  Ball,  45  Ind.  213  ; 
McPherson  v.  MeeJc,  30  Mo.  345  ;  see  Stone  v.  Myers,  9  Minn. 
303.  It  is  not  perfected  until  delivery  ;  where,  therefore,  a  bond 
is  signed  on  Sunday,  and  delivered  on  the  day  following,  it  is 
not  void.  Commonioealth  v.  Kendig,  2  Penn.  St.  448  ;  Prather 
V.  Harlan,  6  Bush  (Ky.),  185.  Delivery  to  the  paj^ee  or  his  agent 
is  absolute  at  law,  and  its  effect  cannot  be  controlled  by  parol. 
Madison,  etc.,  Co.  v.  Stevens,  10  Ind.  1.  And  it  is  held,  that 
where  the  terms  and  form  of  a  bond  have  been  previously 
assented  to,  and  the  consideration  paid  by  the  obligee,  such 
bond  should  be  considered  as  having  been  delivered  as  soon  as 
placed  in  any  public  conveyance,  or  in  the  hands  of  any  person, 
to  be  delivered  to  the  obligee.  Alcalda  v.  Morales,  3  Nev.  132. 
So,  if  the  obligor,  after  signing  and  sealing  the  bond,  holds  it 
out  in  his  hand,  and  says  to  the  obligee  :  "  Here  is  3^0 ur  bond, 
what  shall  I  do  with  it  ?"  This  is  a  sufficient  delivery,  though 
it  never  comes  to  the  actual  possession  of  the  obligee.  Folly  v. 
Vantuyl,  9  N.  J.  L.  (4  Halst.)  153  ;  see  Ward's  Appeal,  35  Conn. 
161.  But  where  the  obligor  delivered  the  bond  to  a  third  per- 
son, to  be  delivered  to  the  obligee,  who  never  received  it,  the 
bond  was  held  not  binding.  State  v.  Oden,  2  Harr.  &  J.  (Md.) 
108,  n.  And  wliere  a  bond  is  not  delivered  to  the  obligee,  and 
is  put  into  his  possession  by  one  who  has  no  authority  to  deliver 
it,  the  obligee  cannot  maintain  an  action  upon  it.  Fay  v.  Rich- 
ardson, 7  Pick.  (Mass.)  91 ;  FiUs  v.  Green,  3  Dev.  (N.  C.)  291  ; 
Whitsell  V.  Mehane,  64  N.  C.  345.  So,  delivery  in  blank  is  an 
insufficient  delivery,  unless  recognized  after  the  blank  is  filled. 
Edelin  v.  Sanders,  8  Md.  118. 

A  bond  cannot  be  delivered  to  the  obligee,  or  to  one  of  several 
obligees,  as  an  escrow.  Moss  v.  Riddle,  5  Cranch,  351  ;  Blume 
V.  Bowman,  2  Ired.  L.  (N.  C.)  338 ;  State  v.  Chrisman,  2  Ind. 
126  ;  Perry  v.  Patterson,  5  Humph.  (Tenn.)  133.  A  delivery  to 
one  obligee  is  a  delivery  to  all.     3Ioss  v.  Itlddle,  5  Cranch,  351. 


680  BONDS. 

But  a  bond  may  be  delivered  to  the  principal  obligor  as  an  escrow, 
by  a  surety.  Pauling  v.  United  States,  4  Cranch,  219.  And 
parol  evidence  is  admissible  to  show  that  a  bond  was  delivered 
as  an  escrow,  in  such  case.  Crawford  v.  Foster,  6  Ga.  202  ;  see 
Bonce  v.  Kellett,  11  id.  286  ;  Fertig  v.  Boucher,  3  Penn.  St.  308 ; 
States.  Bodly,  7  Blackf.  (Ind.)  355.  As  the  possession  of  a  bond 
is  prima  facie  evidence  of  a  delivery.  Grim  v.  School  Direct- 
ors, 61  Penn.  St.  21»,  Clark  v.  Ray,  1  Harr.  &  J.  (Md.)  323  ;  Blanlc- 
man  v.  Yallejo,  15  Cal.  638.  So  the  signing,  sealing,  and  delivery 
of  a  bond,  are  prima  facie  evidence  of  its  acceptance  and 
approval.  Wilson  .v.  Ireland,  4  Md.  444,  And  if  an  obligee 
once  accepts  a  bond,  he  cannot  afterward  disagree  to  it,  so  as 
to  make  it  void.  Bank  of  Newhern  v.  Pugh,  1  Hawks  (N.  C), 
196 ;  Pequawket  Bridge  v.  Mathes,  8  N.  H.  139. 

If  a  bond  is  delivered  on  the  day  of  its  date,  and  accepted 
conditionally,  to  become  absolute  when  the  sufficiency  of  the 
sureties  shall  be  certified  by  A,  A's  subsequent  certificate  will 
make  it  a  valid  delivery  and  acceptance  from  the  date  of  the 
bond.  Seymour  v.  Van  Slyck,  8  Wend.  414.  The  law  is  well 
settled  that  a  bond  takes  effect  from  its  delivery  ;  and  the  day  of 
delivery  may  be  shown  whenever  it  becomes  material.  Fournier 
V.  Cyr,  64  Me.  32. 


ARTICLE  Y. 

CONSTRUCTION  AND  EFFECT. 

Section  1.  Recitals.  A  recital  in  a  bond  preceding  the  condi- 
tion is  conclusive  upon  the  parties  as  an  admission  of  the  fact 
recited,  and  may  restrain  the  condition,  the  words  of  which 
imply  a  greater  liability  than  the  recital,  Bennehan  v,  Webh,  6 
Ired,  L.  (N.  C.)  57 ;  Bell  v.  Bruen,  1  How.  169 ;  Carpenter  v. 
Buller,  8  M.  &  W.  209  ;  Pearsall  v.  Summerset,  4  Taunt.  593 ; 
Fletcher  v.  Jackson,  23  Vt.  581  ;  and  see  Hoke  v.  Hoke,  3  W. 
Va.  561.  But  a  recital  of  matter  immaterial  to  the  object  of  the 
bond  works  no  estoppel  against  the  party  executing  it.  Heed  v. 
McCourt,  41  N.  Y.  (2  Hand)  435. 

§  2.  General  rules.  In  giving  construction  to  the  condition  of 
a  bond,  where  the  intention  of  the  parties  is  manifest,  the  court 
will  suppress  insensible  words,  and  supply  accidental  omissions, 
in  order  to  give  effect  to  that  intention.  Dredell  v.  Barber,  9 
Ired.  L.  (N.  C.)  250;    Whitsett  v.  Womack,  8  Ala.  466;  see  De- 


BONDS.  681 

Soto  V.  Dickson^  34  Miss.  150.  And  tlie  whole  language  of  the 
condition  of  a  bond  is  to  be  taken  into  consideration,  in  ascer- 
taining the  true  construction  of  different  parts  of  it.  Bank  v. 
Willard,  10  N.  H.  210.  If  tha  condition,  instead  of  specifying 
the  particular  purposes  for  which  the  bond  is  given,  refers  to  a 
paper  which  does  specify  them,  it  is  equivalent  to  the  enumera- 
tion of  these  purposes  in  the  bond.  United  States  v.  Maurice^ 
2  Brock.  96.  So,  an  agreement,  entered  into  at  the  same  time 
that  a  bond  is  executed,  and  indorsed  thereon,  must  in  equity  be 
considered  a  part  thereof.  Hughes  v.  Sanders,  3  Bibb  (Ky.), 
360 ;  Nichols  v.  Douglass,  8  Mo.  49  ;  see  Shermer  v.  Beale,  1 
Wash.  (Va.)  11 ;  Gordon  v.  Frazier,  2  id.  130.  A  bond  single  is 
to  be  taken  most  strongly  against  the  obligor  ;  but  a  condition 
annexed,  being  for  his  benefit,  is  to  be  taken  most  strongly  in 
his  favor.  Bennehan  v.  Webb,  6  Ired.  L.  (N.  C.)  57.  And  statu- 
tory bonds  taken  by  officers  of  the  court  in  the  absence  of  the 
obligee  are  to  be  liberally  construed.  Clayton  v.  Anthony,  18 
Gratt.  (Ya.)  578. 

A  bond,  in  form  joint  and  several,  but  signed  by  one  only,  is 
a  several  bond,  and  if  the  obligor  signs  the  names  of  others 
without  authority  from  them,  the  effect  of  it  is  not  changed. 
Wood  V.  Ogden,  16  N.  J.  L.  (1  Harr.)  453.  A  bond  to  pay  a  sum 
of  money  at  the  death  of  the  obligor,  drawn  in  absolute  terms, 
and  unconditionally  delivered,  takes  effect  as  a  present  obliga- 
tion, and  is  irrevocable.  Mack's  Appeal,  68  Penn.  St.  231. 
Where  a  bond  is  conditioned  for  the  payment  of  a  sum  certain, 
without  specifying  any  time  of  payment,  the  money  is  due  im- 
mediately without  demand,  and  bears  interest  from  the  date  of 
the  bond.  Purdy  v.  Phillips,  1  Duer  (N.  Y.),  369  ;  S.  C.  affirmed, 
11  N.  Y.  (1  Kern.)  406.  See  Omohundro  v.  Omohundro,  21  G-ratt. 
(Va.)  626.  A  bond  to  appear,  abide  by  and  perform  a  judgment, 
secures  payment  of  the  judgment.     Cole  v.  Reilly,  28  Ga.  431. 

The  very  general  disposition  of  the  courts  in  this  country  is 
to  regard  the  sum  expressed  in  a  bond  as  a  penalty  or  security 
for  the  performance  of  the  condition,  and  not  as  liquidated  dam- 
ages in  cases  where  the  parties  have  not  expressly  declared  it 
to  be  certainly  the  one  or  the  other.  Therefore,  if  the  agreement 
assumes  the  form  of  a  bond,  with  a  condition  that  it  shall  be  void 
upon  the  performance  or  non-performance  of  an  act,  the  prima 
facie  presumption  is,  that  the  sum  of  money  mentioned  therein 
is  intended  merely  as  a  security,  and  not  as  liquidated  damages  ; 
and  this  presumption  will  stand  until  controlled  by  very  strong 

Vol.  L  — 86 


682  BONDS. 

considerations.  Davis  v.  Gllleit^  52  N.  H.  126.  See  Swift  v. 
Crow,  17  Ga.  609 ;  Hargroves  v.  Cooke,  15  id.  321 ;  Lyon  v. 
CZar^,  8  N.  Y.  (4  Seld.)  148 ;  Griffiths  v.  Hardenhergh,  41  N. 
Y.  [2  Hand)  464. 

§  3.  Of  particular  words  and  phrases.  Where  the  condition  of 
a  bond  is  tliat  the  parties  shall  perform  the  decree  of  "the 
court,"  it  means  the  court  which  shall  ultimately  decide  the 
cause.  Archer  v.  Hart,  5  Fla.  234;  United  States  v.  Little 
Charles,  1  Brock.  881.  The  words  "jointly  and  severally/'  in 
a  bond,  must  be  construed  distributively,  so  as  to  apply  as  well 
to  the  obligors  as  to  their  heirs.  "  We  bind  ourselves,"  makes 
them  joint  obligators  ;  "  we  bind  our  heirs,  executors  and  admin- 
istrators," binds  them  jointly,  and  "  we  bind  each  and  every  of 
them,"  binds  them  severally.  Mitchell  v.  Darricott,  3  Brev.  (S. 
C.)  145.  See  People  v.  Love,  25  Cal.  520.  A  bond  beginning, 
"I  hereby  bind  myself,"  but  signed  by  several,  is  the  joint 
obligation  of  all  the  signers,  or  the  several  obligation  of  each. 
Knisley  v.  Shenberger,  7  Watts  (Penn.),  193 ;  and  see  Leith  v. 
Bush,  61  Penn.  St.  395 ;  Short  v  Town  of  Lancaster,  17  Ohio, 
96;  Willey  v.  State,  3  Ind.  500;  Supervisors  of  St.  Joseph  v. 
Goffeiibury,  1  Mich.  355. 

A  bond  to  devise  "  all  my  personal  estate  of  every  description, 
as  well  what  I  now  have  in  possession  as  what  I  may  receive 
at  the  decease  of  my  mother,"  the  obligor  to  keep  possession  of 
the  property  during  his  life,  is  not  void  for  uncertainty.  Jenkins 
V.  Stetson,  9  Allen  (Mass.),  128.  And  where  the  condition  of  a 
bond  for  the  plaintiffs  maintenance  required  the  obligor  to  furnish 
to  the  obligee  "  money  necessary  for  him  to  spend,  whenever  he 
thinks  proper  to  visit  his  friends,"  it  was  held,  that  whenever, 
in  the  honest  and  fair  exercise  of  his  judgment,  the  obligee 
thought  proper  to  make  such  visits,  the  obligor  was  bound  to 
furnish  money  ;  but  not,  if  exercised  wantonly  or  capriciously. 
Berry  v.  Harris,  43  N.  H.  376.  In  a  bond  to  A  B,  administra- 
tor, "  or"  C  D,  administratrix,  the  word  "or"  will  be  taken  to 
mean  "and."  Brittin  v.  Mitchell,  4  Ark.  92.  See  Parker  v. 
Carson,  64  N.  C.  530.  And  where  it  clearly  appeared  upon  the 
face  of  the  whole  instrument  that  the  name  of  "Wheeler"  had 
by  mistake  been  substituted  for  that  of  "Woodward"  as  the 
obligor  in  the  condition  of  a  bond  of  indemnity,  the  court  con- 
strued the  instrument  as  though  the  mistake  had  not  occurred. 
Richmond  v.  Woodward,  32  Vt.  833.  But  where  the  defendant's 
name  was  Thomas  B.  Hanly,  a  bond  for  costs,  filed  by  the  plain- 


BONDS.  683 

tiff,  executed  to  Thomas  B.  Han,  was  held  insuflScient.  Hanly 
V.  Campbell^  4  Ark.  562. 

A  senseless  or  repugnant  condition  will  not  affect  the  true 
intent  of  the  bond  ;  as  if  the  condition  be  that  "  if  the  obligor  do 
Tzo^pay."  Stockton  v.  Turner,  7  J.  J.  Marsh.  (Ky.)  192.  And 
see  Gibhs  v.  Halstead.  24  N.  J.  L.  (4  Zab.)  366.  When  a  bond 
is  executed  in  one  country  with  a  view  to  its  performance  in 
another,  the  law  of  the  latter  country  furnishes  the  rule  for 
determining  its  obligation.     Carneal  v.  Day^  6  Litt.  (Ky.)  492. 

§  4.  Validity.  In  treating  of  consideration,  ante,  673,  674,  art. 
3,  §  2,  instances  of  an  illegal  consideration  affecting  the  validity 
of  bonds  were  given.  Some  general  rules  relating  to  the  valid- 
ity ^of  bonds  will  be  appropriate  in  this  connection. 

A  bond  to  indemnify  an  officer  against  an  unlawful  act  is  void. 
Anderson  v.  Farns,  7  Blackf.  (Ind.)  343.  So,  of  a  bond  exacted 
by  an  officer,  when  he  has  no  authority  to  require  it.  Benedict 
V.  Bray,  2  Cal.  251.  And  a  bond  given  to  obtain  a  discharge 
from  an  unlawful  imprisonment  is  obtained  by  duress,  and  is 
void.  BowTcer  v.  Lowell,  49  Me.  429.  See  Kavaiiagh  v.  Saun- 
ders, 8  id.  422.  And  generally,  a  bond  is  void  which  shows 
upon  its  face  an  illegal  consideration.  Greathouse  v,  Dunlap,  3 
McLean,  303.  A  bond  for  ease  and  favor  is  unlawful  and  void. 
But  to  constitute  such  bond  it  must  be  given  to  the  officer  who 
makes  the  arrest.  Claasen  v.  Skaao,  5  Watts  (Penn.),  468 ; 
Baker  v.  Haley,  5  Me.  240  ;  Clap  v.  Co/ran,  7  Mass.  101.  Bonds 
given  for  the  loan  of  money  to  be  used  in  purchasing  a  forge,  at 
which  iron  was  to  be  made  ^or  the  Confederate  government,  of 
which  fact  the  obligee  was  duly  informed,  have  been  held  void. 
Logan  v.  Plummer,  70  N.  C.  388. 

A  bond  to  indemnify  against  an  unlawful  act  or  omission 
already  past  is  not  unlawful.  Omen  v.  Driggs,  1  Caines  (N. 
Y.),  450 ;  see  Oi'iffiths  v.  Hardenberg,  41  N.  Y.  (2  Hand)  464. 
And  where  a  bond  was  given  to  the  father  of  a  female,  reciting 
that  she  had  borne  an  illegitimate  child  to  the  obligor,  who  con- 
sented to  marry  her,  and  binding  the  obligor  to  treat  her  as  a 
loving  and  affectionate  husband  ought,  and  not  to  maltreat, 
abuse  or  desert  her  ;  it  was  held  that  the  bond  was  not  void  as 
being  against  public  policy.  Wyant^.  Lesher,  23  Penn.  St. 
338.  And  a  bond  not  to  sell  intoxicating  liquor  within  the 
limits  of  a  town,  or  within  a  circuit  of  a  mile  around  it,  is  not 
void  as  being  in  restraint  of  trade  ;  because  the  whole  course  ot 
legislation  in  regard  to  the  sale  of  intoxicating  liquors  shows  a 


684  BONDS. 

settled  policy  of  tlie  State  to  discourage  such  traffic.  Harrison 
V.  Loclcart,  25  Ind.  112 ;  see  Siudabaker  y.  White,  31  id.  211. 
So,  a  bond  given  for  her  support  to  a  married  woman  by  a  per- 
son other  than  her  husband  cannot  be  considered  invalid  as 
subversive  of  good  morals  and  tending  to  impair  the  obligations 
of  the  marriage  covenant,  when  she  had  separated  from  her 
husband  before  the  bond  was  given,  and  subsequently  obtained 
a  divorce,  indicating  that  the  separation  was  not  her  fault. 
Farnwn  v.  Bartlett,  52  Me.  570. 

As  it  regards  a  statutory  bond  the  rule  is  stated  to  be,  that 
such  bond  is  absolutely  void  only  when  the  statute  declares  it 
void.  Van  Busen  v.  Hay  ward,  17  Wend.  67  ;  Ring  v.  Glbbs, 
26  id.  502.  It  is  not  void  merely  because  it  does  not  in » all 
respects  conform  to  the  statute  under  which  it  is  taken.  lb.  See 
Cobb  V.  Co?7imofiwealt/i,  3  T.  B.  Monr.  (Ky.)  391 ;  Nunn  v.  Good- 
lett,  10  Ark.  89  ;  Commissioner  v.  Way,  3  Ohio,  103  ;  State  v. 
Layton,  4  Harr.  (Del.)  512 ;  Amos  v.  Allnut,  10  Miss.  215 ;  Tale 
v.  Flanders,  4  Wis.  96.  And  the  repeal  of  a  statute  has  no 
effect  upon  the  force  or  validity  of  a  bond  executed  under  it, 
and  according  to  its  requirements.  Tucker  v.  Stokes,  11  id.  124. 
So,  a  bond  required  b}^  statute  may  vary  from  the  statutory 
requirements  and  still  be  a  good  common-law  bond.  Lane  v. 
Kasey,  1  Mete.  (Ky.)  410;  State  v.  Thompson,  49  Mo.  188; 
Hester  v.  Keith,  ]  Ala.  316 ;  Williams  v.  Shelby,  2  Oreg.  144. 
Thus,  a  bond  given  for  the  prison  liberties,  though  not  strictly 
conformable  to  statute  provisions,  may  be  good  by  the  common 
law ;  such  bond  not  being  for  ease  and  favor.  Burroughs  v. 
Loioder,  8  Mass.  373 ;  Winthrop  v.  Dockendorff,  3  Me.  240.  By 
statute  in  Tennessee,  a  bond  good  at  common  law  is  a  good 
statutory  bond.  State  v.  Clark,  1  Head  (Tenn.),  369.  A  bond 
made  payable  to  the  "United  States  of  America"  would,  it 
seems,  be  binding  at  common  law;  for  the  "United  States  of 
America"  is  a  corporation  endowed  with  the  capacity  to  sue 
and  be  sued,  to  convey  and  receive  property.  Dixon  v.  United 
States,  1  Brock.  177. 

Where  bonds  are  issued  to  bona  fide  holders  for  value,  and, 
under  the  judicial  decisions  of  the  State,  are  valid  at  the  time  of 
issue,  subsequent  decisions  in  that  State  cannot  invalidate  them. 
City  V.  Samson,  9  Wall.  477. 

The  rule  in  regard  to  bonds  and  other  deeds  void  in  part  by 
common  law,  or  by  statute,  is,  that  they  are  void  as  to  such  con- 
ditions, covenants,  or  grants  as  are  illegal,  and  good  as  to  all 


BONDS.  685 

otliers  which  are  legal  and  unexceptionable.  Preshury  v 
Fisher,  18  Mo.  50 ;  Whitted  v.  Governor,  6  Port.  (Ala.)  335  ; 
United  8taies  v.  Brown,  Gilp.  155 ;  Town  of  Montgomery  v. 
Plank-Road  Co.,  31  Ala.  76 ;  Newman  v.  Newman,  1  Stark.  101 ; 
Tale  V.  Hex,  6  Bro.  P.  0.  31 ;  see  post,  art.  12,  §  1.  And  when 
obligors  acknowledge  themselves  to  be  severally  indebted,  the 
bond  may  be  good  as  to  part  of  them,  and  void  as  to  the  others. 
Dickey  v.  Sleeper,  13  Mass.  244.  A  bond,  though  void  on  the 
ground  of  usury,  as  a  security  for  money,  may  be  evidence  of 
the  amount  of  money  advanced.  Campbells  v.  Patterson,  11 
Leigh  (Va.),  13. 

The  rules  as  to  the  validity  of  a  bond  are  thus  briefly  stated  : 
Where  the  condition  of  a  bond  is  originally  impossible,  the 
bond  is  absolute.  Where  the  condition  is  originally  illegal,  the 
bond  is  void.  Where  the  condition  subsequently  becomes  im- 
possible by  the  act  of  the  obligor,  or  of  a  stranger,  the  bond  is 
forfeited.  Where  it  becomes  impossible  by  the  act  of  God,  or 
of  the  law,  or  of  the  obligee,  the  bond  is  saved.  Beswick  v. 
Swindells,  3  Ad.  &  El.  868  ;  Anonymous  5  Nev.  &  M.  378.  See 
Olive  V.  Aliter,  14  Mo.  185  ;  Blake  v.  mies,  13  N.  H.  459  ;  Moun- 
sey  V.  Drake,  10  Johns.  27 ;  Baylies  v.  Fettyplace,  7  Mass.  338 ; 
United  States  v.  Mitchel,  3  Wash.  95 ;  BatJi  v.  Lyle,  68  Penn, 
St.  60 ;  Green  v.  Smith,  4  Cold.  (Tenn.)  436. 

§  5.  Performance.  As  a  general  rule,  when  no  place  is  men- 
tioned for  the  performance  of  a  bond,  it  must  be  performed  to 
the  obligee  in  person.  Currier  v.  Currier,  2  N.  H.  75.  But 
this  rule  has  no  application  to  the  delivery  of  cumbersome  arti- 
cles, nor  to  cases  in  which  the  nature  of  the  contract  indicates  a 
particular  place  of  performance.  lb.  If  the  condition  of  a  bond 
be  in  the  disjunctive,  it  may  be  discharged  by  performance  of 
either  of  the  enumerated  acts,  at  the  election  of  the  obligor. 
An  exception  to  the  rule  is,  when  the  parties  have  saved  the 
election  to  the  obligee.  United  States  v.  Thompson,  1  Gall.  (C. 
C.)  388. 

It  is  held  no  bar  to  an  action  on  a  bond  for  performance  of 
covenants,  that  the  condition  has  become  impossible  by  the 
death  of  the  obligor.  A  compensation  in  damages  may  be 
awarded  to  the  obligee,  and  the  damages  may  be  ascertained  by 
an  issue  at  law.  Miller  v.  Nichols,  1  Bailey  (S.  C),  226 ;  but 
see  Badlam  v.  Tucker,  1  Pick.  (Mass.)  287.  So,  it  is  no  excuse 
for  the  non-performance  of  a  condition  in  a  bond  to  clear  land 
within  a  stipulated  time,  that  the  land  was  overflowed.    Sullivant 


686  BONDS. 

V.  Heardon,  5  Ark.  140.  And  a  contract  between  the  parties  to  a 
bond,  tliat  the  acts  required  by  the  condition  may  be  performed 
within  a  certain  time  beyond  the  time  limited  in  the  bond,  and 
shall  have  the  same  effect  as  if  performed  within  the  time,  is  no 
excuse  for  non-performance  of  the  condition,  unless  the  contract 
is  performed.     Washburn  v.  Mosely,  22  Me.  160. 

§  6.  Breach.  To  entitle  a  party  to  recover  the  penalty  of  a 
bond  given  for  the  faithful  performance  of  a  covenant,  a  techni- 
cal infraction  of  its  literal  terms  is  not  alone  sufficient.  It  must 
be  shown  that  some  substantial  right  within  the  intent  of  the 
whole  covenant  has  been  infringed,  or  its  purpose  defeated. 
SevitsJcy  v.  Johnson^  35  Cal.  41.  And  to  constitute  a  breach 
of  a  bond  to  "  indemnify  and  save  harmless  from  any  loss 
or  damage  to  which  a  party  may  be  subjected,"  there  must 
be  actual  loss  and  damage,  and  not  a  mere  liability  to  loss. 
Aberdeen  v.  Blackmar,  6  Hill  (N.  Y.),  324;  Fayerweather  v. 
Wlllet,  1  Edm.  Sel.  Cas.  (N.  Y.)  364;  Bector,  etc.,  of  Trinity 
Church  V.  Higgins,  48  N.  Y.  (3  Sick.)  532,  537;  see  Tate  v.  Booe, 
9  Ind.  13 ;  FranJcs  v.  Hamilton,  29  Ga.  139  ;  Tufts  v.  Hayes, 
31  N.  H.  138. 

Owning  stock  in,  or  being  employed  by  a  corporation  in  carry- 
ing on  a  manufacturing  business,  is  a  breach  of  the  condition  of 
a  bond  not  to  engage  in  that  business  within  certain  limits. 
Whitney  v.  Slayton,  40  Me.  224.  So,  a  condition  that  the  obli- 
gor shall  pay  all  the  just  debts  which  the  obligee  "now  owes," 
is  broken  by  an  omission  to  pay,  at  maturity,  a  note  given  by 
the  obligee,  although  the  holder  of  the  note  does  not  demand 
nor  desire  payment.  Stewart  v.  ClarTc,  11  Mete.  (Mass.)  384. 
So,  a  bond  conditioned  to  furnish  to  the  obligee  and  his  wife, 
all  necessary  meat,  drink,  lodging,  washing,  clothes,  etc.,  dur- 
ing both  and  each  of  their  natural  lives,  is  an  entire  contract ; 
and  a  failure  by  the  obligor  to  provide  for  the  obligee  and  his 
wife  according  to  the  substance  and  spirit  of  the  covenant, 
amounts  to  a  total  breach,  and  full  and  final  damages  may  be 
recovered,  as  well  for  the  future  as  for  the  past  Shaffer  v.  Lee, 
8  Barb.  412;  see  JenJcins  v.  Stetson,  9  Allen  (Mass.),  128.  And 
where  the  importation  of  negroes  was  prohibited  by  statute, 
after  a  bond  had  been  given  to  import  and  deliver  a  certain 
number  of  them,  it  was  held,  that  although  the  bond  could  not 
lawfully  be  fulfilled  specifically,  yet  the  obligor  was  liable  for 
the  value  of  the  negroes,  in  money.  Rose  v.  MacLeod,  2  Bay 
(S.  C),  108.    The  condition  of  a  certiorari  bond  is  broken  if  the 


BONDS.  687 

certiorari  is  dismissed  for  want  of  prosecution.    Marry ott  v. 
Young,  33  N.  J.  (Law)  336. 

The  condition  of  a  bond  is  not  impossible  if  it  may  be  per- 
formed by  the  aid  of  the  obligee.  If,  therefore,  the  obligee 
neglect  or  refuse  to  act,  in  such  case,  the  condition  is  saved. 
Pindar  v.  Uvton,  44  N.  H.  358. 

ARTICLE  yi. 

RELEASE    AND    DISCHARGE. 

Section  1.  In  generaL  An  obligee  may  release  one  of  two 
several  obligors  named  in  a  bond,  or  cancel  the  bond  as  to  one, 
by  tearing  off  his  seal,  without  the  consent  of  the  other  ;  for  the 
reason  that  it  does  not  increase  the  responsibility  of  the  other 
obligor,  or  in  any  manner  change  the  nature  of  his  obligation. 
Mattlieio son's  Case,  5  Co.  44 ;  Burson  v.  Kincaid,  3  Penn.  57 ; 
But  if  the  name  of  one  of  two  or  more  joint  obligors  be  stricken 
out  or  erased,  or  his  seal  be  torn  off  from  a  bond  by  the  consent 
of  the  ohligee  and  the  other  obligors,  it  shall  cease  to  be  the  bond 
of  him  whose  name  is  so  stricken  out  or  erased  from  it ;  but  it 
shall  from  that  time  be  the  bond  of  the  others.  lb. ;  Rogers  v. 
Hosack,  18  Wend.  319  ;  see  Speaker  v.  The  United  States,  9 
Cranch,  28  ;  Barrington  v.  The  Bank  of  Washington,  14  Serg. 
&  R.  (Penn.)  424.  So,  a  release  by  the  obligee  of  a  bond,  of  one 
of  the  sureties  thereon,  after  he  has  paid  his  proportionate  share 
of  the  sum  due  upon  a  breach  thereof,  does  not  discharge  his 
co-sureties.     State  v.  Atherton,  40  Mo.  209. 

The  sureties  in  a  penal  bond  are  not  discharged  by  the  bank- 
rnptcy  of  the  principal  obligor.  Garnett  v.  Roper,  10  Ala.  842. 
And  although  an  obligee  in  a  bond,  on  the  receipt  of  part  of  his 
debt,  discharge  the  principal  from  the  custody  of  the  sheriff 
when  taken  on  a  ca.  sa.,  and  discontinue  a  suit  brought  by  him 
against  the  principal,  who  had  been  arrested,  yet  the  surety  on 
the  bond  will  not  be  thereby  discharged.  Laioson  v.  Snyder,  1 
Md.  71.  But  the  delivery  by  the  obligee,  to  a  third  person,  of  a 
bond  secured  by  a  trust  mortgage,  upon  the  understanding  that 
the  third  person  is  to  deliver  the  bond  to  the  obligor,  and  him- 
self assume  the  payment  of  the  debt  followed  by  a  delivery  of 
the  bond  to  the  obligor  by  such  third  person,  will,  in  the  absence 
of  fraud,  operate  as  a  cancellation  of  the  bond,  and  a  discharge 
of  the  trust.  Piercy  v.  Piercy,  5  W.  Ya.  199.  A  mere  agree- 
ment to  cancel  a  bond,  without  an  actual  cancellation,  will  not, 
however,  render  it  void.    Barrett  v.  Barron,  13  N.  H.  150. 


688  '        BONDS. 


ARTICLE  VII. 


NEGOTIABLE   BOKDS. 


Section  1.  What  are.  It  is  now  settled  by  the  current  of 
American  authorities  that  a  coupon  bond  of  a  municipal,  or  a 
business  corporation,  is  negotiable,  and  that  its  coupons  are  also 
negotiable,  and  may  be  detached  and  negotiated  separately  by 
simple  delivery,  and  sued  on  separately  from  the  bond,  and  this 
after  the  bond  itself  has  been  paid  and  satisfied,  as  well  as  before. 
White  V.  Vermont  and  Mass.  R.  R.  Co..,  21  How.  577  ;  County  of 
Beaver  v.  Armstrong,  44  Penn.  St.  63  ;  Thompson  v.  Lee  County, 
3  Wall.  327 ;  Meyer  v.  Muscatine,  1  id.  384 ;  Gelpeclce  v.  Du- 
buque, id.  175 ;  Murray  v.  Lardner,  2  id.  110  ;  City  v.  Lamson, 
9  id.  477 ;  Blake  v.  Livingston  Co.,  61  Barb.  149  ;  Langston  v. 
8.  G.  R.  R.  Co.,  2  S.  C.  248 ;  Craig  v.  City  of  Vicksburg,  31 
Miss.  217 ;  Clark  v.  City,  10  Wis.  140 ;  Johnson  v.  County,  24 
111.  92  ;  Arents  v.  Com.,  18  Gratt.  (Va.)  750  ;  Spooner  v.  Holmes, 
102  Mass.  503 ;  JVat.  Exchange  Bank  v.  Hartford,  etc.,  R.  R.  Co., 
8  R.  I.  375  ;  S.  C,  5  Am.  R.  582.  But  see  Diamond  v.  Lawrence 
Co.,  37  Penn.  St.  358;  Myers  v.  York  &  Cumberland  R.  R.,  43 
Me.  239.  Such  bonds  were  at  first  held  non-negotiable  by  the 
courts,  because  they  were  sealed  instruments.  Subsequently 
they  came  to  be  acknowledged  as  negotiable  instruments, 
and  the  holders  of  them  were  protected  to  the  same  extent 
as  the  holders  of  negotiable  notes  and  bills  under  the  law 
merchant.  A  little  later,  they  came  to  be  recognized  as  negotia- 
ble in  as  full  and  complete  a  manner  as  bank  bills  or  the  national 
(Currency  of  the  country.  And  now,  they  stand  not  only  equal 
before  the  law  to  the  negotiable  paper  pertaining  to  the  com- 
mercial business  of  the  country,  and  to  our  circulating  medium, 
but  they  are  also,  for  their  greater  advantage,  and  for  the  pur- 
pose of  causing  them  to  be  accepted  as  among  the  most  desira- 
ble investments  for  capital  in  the  monetary  centers  of  the  world, 
regarded  as  chattels ;  in  so  far  as  that  character  shall  tend  to 
relieve  them  from  defenses  and  burdens  incident  to  choses  in 
action  merely,  and  give  to  them  a  merchantable  and  vendible 
quality.  Griffith  v.  Burden,  35  Iowa,  138.  The  later  English 
chancery  cases  hold  that  such  bonds  are  either  promissory 
notes,  or  else  analogous  to  the  letter  of  credit.  See  Li  re  Lnpe- 
rial  Land  Co.  of  Marseilles, etc.,  L.  R.,  11  Eq,  478  ;  In  re  General 
Estates  Co.,  etc.,  L.  R.,  3  Oh.  App.  768.    Interest  warrants  or 


BONDS.  689 

coupons,  in  a  negotiable  form,  draw  interest  after  the  payment 
of  them  is  unjustly  neglected  or  refused.  Mills  v.  Jefferson^  20 
Wis.  50  ;  San  Antonio  v.  Lane,  32  Tex.  405 ;  Aurora  City  v. 
West,  7  Wall.  82 ;  North  Penna.  R.  R.  v.  Adams,  54  Penn.  St. 
94. 

§  2.  Rights  of  bona  Me  holder.  The  purchaser  of  a  negotiable 
bond,  for  value  advanced,  in  good  faith,  is  unaflfected  by  want  of 
title  in  the  vendor.  And  the  burden  of  proof,  on  a  question  of 
such  faith,  lies  on  the  party  who  assails  the  possession.  Keeney 
v.  Chilis,  4  Greene  (Iowa),  416  ;  Murray  v.  Gardner,  2  Wall. 
110 ;  Carpenter  v.  Rommel,  5  Phila.  (Penn.)  34.  Nor  is  the  pur- 
chasey  of  such  a  bond  in  open  market,  and  in  the  usual  course 
of  business,  bound  to  make  a  critical  examination  in  order  to 
escape  the  imputation  of  bad  faith  in  the  purchase.  Welch  v. 
Sage,  47  N.  Y.  (2  Sick.)  143  ;  S.  C,  7  Am.  R.  423.  Negligence 
even  will  not  impair  his  title.  lb.  And  see  Seyhel  v.  Nat.  Cur- 
rency Bank,  54  N.  Y.  (9  Sick.)  288. 

A  bona  fide  purchaser,  without  notice,  of  stolen  negotiable 
bonds  has  a  good  title  to  them  against  the  former  owner.  Car- 
penter V.  Rommel,  5  Phila.  (Penn.)  34.  So  the  vsrongful  putting 
in  circulation  of  the  bonds  of  a  foreign  government,  payable  to 
bearer,  and  transferable  by  delivery  by  an  agent  of  the  obligors 
having  them  in  custody,  will  not  invalidate  the  title  of  a  pur- 
chaser for  value,  and  without  notice.  Leavitt  v.  Morgan,  7  Robt. 
(N.  Y.)  350  ;  S.  C,  37  How.  264  ;  3  Abb.  (N.  S.)  469.  And  it  was 
held,  that  an  action  for  a  conversion  would  not  lie  against  one 
who  had  received,  as  agent,  in  good  faith,  and  had  sold  stolen 
coupons  of  United  States  bonds,  and  who  had  turned  over  the 
proceeds  to  his  principal.  Spooner  v.  Holmes,  102  Mass.  503 ; 
S.  C,  3  Am.  R.  491  ;  and  see  State  v.  Wells,  15  Cal.  336. 

Government  bonds,  payable  to  bearer,  purchased  after  the  date 
at  which  they  are  redeemable,  are  held  to  be  taken  subject  to 
aU  equities.     Texas  v.  White,  7  Wall.  700  ;  S.  C,  25  Tex.  465. 


ARTICLE  VIII. 

OFFICIAL   B0KD3. 

Section  1.  Construction  and  effect  of.  As  it  regards  an  official 
bond,  it  is  held  that  if  the  statute  prescribing  the  conditions  of 
such  bond  enumerates  particular  duties,  and  also  contains  gen- 
eral words  which  include  his  whole  duty,  an  obligor  in  a  bond 

Vol.  I.— 87 


690  BONDS. 

taken  under  sucli  statute  is  not  discliarged  from  such  general 
obligation  by  an  omission  of  suck  particular  enumeration.  The 
Justices  V.  Wynn,  Dudley  (Ga.),  22.  So  an  official  bond  cannot 
be  restricted  from  operating  according  to  its  terms,  by  any  parol 
evidence  of  conversation  between  the  principal  and  sureties  at 
the  time  of  its  execution,  not  known  to  the  officer  whose  business 
it  was  to  approve  the  bond.  McKee  v.  Commonwealth,  2  Grant's 
Cas  (Pa.)  23.  A  bond  for  faithful  performance  is  to  be  construed, 
no  less  as  to  the  surety  than  the  principal,  with  reference  to  the 
situation  of  the  parties,  and  the  hazards  against  which  the  obligee 
exacted  security.  Rochester  City  Bank  v.  Elwood,  21  N.  Y.  (7 
Smith)  88.  Thus,  a  bond  conditioned  for  the  faithful  discharge 
by  one  of  the  obligors  of  "the  trust  reposed  in  him  as  assistant 
book-keeper"  of  a  bank,  is  an  engagement  that  he  will  not  avail 
himself  of  his  position  to  misapply  or  embezzle  the  funds  of  his 
employer,  and  the  appropriation  by  the  book-keeper  of  the 
bank's  money,  and  making  fraudulent  entries  to  avoid  detection, 
is  a  breach  of  the  bond  as  against  a  surety  therein.  lb.  But  the 
sureties  on  the  official  bond  of  a  county  clerk  are  not  liable  for 
sheriff's  fees  collected  by  the  clerk,  and  not  paid  over  to  the 
sheriff.     State  v.  Glnan^  45  Ind.  267. 

The  obligor  and  his  sureties  in  an  official  bond  are  estopped" 
from  denying  the  regularity  ol  the  principal's  election,  or  his 
official  character.     People  v.  Jeiikins,  17  Cal.  500. 

§  2.  Validity.  A  bond  executed  by  a  public  officer  and  sure- 
ties, though  not  good  as  a  statutory  bond,  may  be  binding  as  a 
voluntary  obligation,  and  an  action  at  common  law  may  be 
maintained  thereon.  Ooodrun  ¥•  Carroll,  2  Humph.  (Tenn.) 
500  ;  Branch  v.  Mliot,  3  Dev.  L.  (N.  C.)  86.  And  see  Vanhook 
V.  Barnett,  4  id.  268  ;  State  v.  Bartlett,  30  Miss.  624. 

If  the  condition  of  an  official  bond  substantially  conforms  to 
the  requirements  of  the  law,  and  imposes  no  additional  obliga- 
tion, it  will  be  deemed  good  as  a  statutory  bond.  Boring  v. 
Williams,  17  Ala.  510.  So,  an  excess  in  the  penalty  of  an  offi- 
cial bond  is  bad  only  as  to  the  excess.  M"* Caraher  v.  Common- 
weaWi,  5  Watts  «&  S!  (Penn.)  21.  See  Polk  v.  Plummer,  2 
Humph.  (Tenn.)  500  ;  Lee  v.  Waring,  3  Desau.  (S.  C.)  57.  And 
such  a  bond,  executed  by  the  sureties  only,  and  not  by  the  prin- 
cipal, is  valid  against  the  sureties.  State  v.  Bowman,  10  Ohio, 
445.  It  is  likewise  held  that  the  bond  of  a  public  officer  is  valid, 
notwithstanding  the  penalty  is  made  payable  to  himself  in 
another  capacity.    Marshall  v.  Hamilton,  41  Miss.  229. 


BONDS.  691 

If  new  duties  are  imposed  upon  a  public  officer,  by  statute, 
after  the  execution  of  liis  official  bond  by  his  surety,  the  bond 
should  be  held  good  against  the  surety  to  the  extent  of  the  duties 
laivfully  covered  by  it,  though  it  may  not  be  good  as  to  the  new- 
duties  imposed  since  its  execution.  Commonwealth  v.  Holmes^ 
25  Gratt.  (Va.)  771. 

§  3.  Rights  and  liaMlities,  under.  Where  an  officer,  who  is 
elected  annually,  gives  a  bond  for  the  faithful  discharge  of  the 
duties  of  his  office,  he  and  his  sureties  are  bound  only  for  one 
year,  although  there  is  no  time  specified  in  the  bond,  and  although 
the  officer  should  be  re-elected  several  years  in  succession.  Biqe- 
low  V.  Bridge,  8  Mass.  275  ;  South  Carolina  Society  v.  Johnson, 
1  McCord  (S.  C),  41.  Bat  where  the  law  provides  that  an  officer 
shall  hold  until  his  successor  is  qualified,  his  bond  covers  his 
acts  so  long  as  he  holds.  Thompson  v.  State,  37  Miss.  518. 
And  the  obligors  in  a  bond  given  to  the  directors  of  a  company, 
who  are  chosen  annually,  for  the  fidelity  of  an  agent  of  the  corn- 
pan}^,  are  liable  after  the  year  has  expired ;  and  the  obligees, 
though  out  of  office,  may  maintain  an  action  on  the  bond, 
Anderson  v.  Long  den,  1  Wheat.  85. 

The  person  who  first  sues  and  obtains  judgment  on  an  official 
bond  is  entitled  to  the  whole  penalty,  if  his  demand  amount  to 
so  much,  in  exclusion  of  other  claimants.  Christman  v.  Com- 
monioealth,  17  Serg.  &  R.  (Penn.)  381.  See  Glidewell  v. 
M'Gaughey,  2  Blackf.  (Ind.)  357.  And  this  rule  holds,  although 
the  party  who  first  sues  is  prevented  from  obtaining  judgment, 
by  a  stay  of  proceedings,  on  the  defendant's  paying  into  court 
the  penalty  of  the  bond.  McKean  v.  Shannon,  1  Binn.  (Penn.) 
370. 

§  4.  Breach.  Generally,  a  bond  conditioned  faithfully  to  exe- 
cute the  duties  of  an  office  is  broken  only  by  gross  negligence. 
An  honest  error  in  judgment,  or  want  of  skill,  will  not  amount 
to  a  breach.  Common  Council  of  Alexandria  v.  Corse,  2  Cranch 
(C.  C),  363.  But  see  Minor  v.  Mechanics'  Bank  of  Alexandria, 
1  Pet.  (U.  S.)  46,  69. 

§  5.  Discharge.  As  it  regards  their  liability  on  a  bond,  there 
is  no  distinction  between  principal  and  surety  ;  and  the  same  act, 
or  neglect,  which  charges  the  former  must  also  charge  the  latter. 
Seaver  v.  Young,  16  Yt.  658.  See  State  v.  BlaTcemore,  7  Heisk. 
(Tenn.)  638  ;  Charles  v.  HosJcins,  14  Iowa,  471.  But  the  sureties 
on  an  official  bond  are  responsible  only  for  acts  of  the  officer 
subsequent  to  the  time  when  the  bond  is  given.    Jeffers  v.  John- 


692  BONDS. 

son,  18  N".  J.  L.  (3  Harr.)  382  ;  Myers  v.  United  States,  1  McLean, 
493.  And  they  can  be  held  for  no  more  than  the  amount  of  the 
peaalty  of  the  bond.  State  v.  BlaJcemore,  7  Heisk.  (Tenn.)  688. 
So,  where  the  appointment  of  the  officer  is  annual,  a  suret/  is 
not  liable  for  his  defaults  arising  after  the  year,  although  the 
officer  continues  such  by  law  until  his  successor  is  appointed. 
The  Mai/or  v.  Horn,  2  Harr.  (Del.;  190.  He  is  liable,  however, 
for  the  neglect  of  his  principal  to  pay  over  moneys  which  came 
into  his  hands  before  the  surety  executed  the  bond,  and  which 
were  still  there  at  the  time  of  such  execution.  State  v.  Van 
Felt,  1  Ind.  304. 

A  discharge  of  one  surety  discharges  his  co-sureties,  in  the 
absence  of  a  statute  to  the  contrary,  as  it  takes  away  their  right 
of  contribution  ;  and  a  statute  to  the  contrary,  being  in  deroga- 
tion of  the  common  law,  is  to  be  strictly  construed.  People  v. 
Buster,  11  Cal.  215.  But  an  official  bond,  being  given  for  official 
good  conduct,  is  not  discharged  by  a  faithful  accounting  for 
moneys  to  the  amount  of  the  penalty  ;  it  stands  good  as  a 
security  for  losses  and  defalcations  to  that  amount.  Potter  v. 
Titcomh,  7  Me.  302,  319. 

The  cancellation  of  an  official  bond  by  an  unauthorized  officer 
is  no  evidence  of  satisfaction.  Ford  v.  Jefferson,  4  Grreene  (Iowa), 
273. 

§  5.  Of  United  States  officers.  The  United  States  have,  in  their 
political  capacity,  a  right  to  enter  into  a  contract,  or  to  take  a 
bond  in  cases  not  previously  provided  for  by  some  law.  Thus,  a 
bond  voluntarily  given  by  a  collecting  or  disbursing  officer  and  his 
sureties,  to  the  United  States,  through  the  proper  department,  to 
secure  the  faithful  performance  of  his  duties,  is  a  valid  contract, 
though  the  taking  of  such  a  bond  may  not  be  prescribed  by  any 
act  of  congress.  Postmaster -General  v.  Rice,  Grilp.  654  ;  United 
States  V.  Tingey,  5  Pet.  115.  So  the  postmaster-general  has  author- 
ity to  take  bonds  of  his  deputies  conditioned  for  faithful  per- 
formance of  their  duties,  and  to  pay  all  moneys  that  shall  come 
to  their  hands  for  postage,  etc.  Postmaster-General  v.  Early,  12 
Wheat.  136.  But  no  officer  of  the  government  has  the  right  to 
require  from  any  subordinate  officer,  as  a  condition  for  his  hold- 
ing office,  that  he  should  execute  a  bond  with  a  condition  diifer- 
ent  from  that  prescribed  by  law ;  and  a  bond  thus  obtained  is 
illegal  and  void.     United  States  v.  Tingey,  5  Pet.  115. 

A  bond  given  by  a  postmaster,  with  sureties,  for  the  perform- 
ance of  his  official  duties,  is  not  binding  until  it  is  approved  and 


BONDS.  693 

accepted  by  the  postmaster-general.  Postmaster-General  v.  Nor- 
mil,  Gilp.  121. 

A  civil  officer  has  a  right  to  resign  his  office  at  any  time,  and, 
after  his  resignation  has  been  received  by  the  proper  department, 
his  surety  is  not  bound  for  his  faithful  performance  of  the  duties 
of  the  office.  United  States  v.  Wright,  1  McLean,  509.  Though, 
if  the  resignation,  in  its  terms,  is  not  to  take  effect  until  a  suc- 
cessor shall  be  appointed,  the  eifect  may  not  be  to  relieve  the 
surety.  lb. 

§  6.  Of  sheriifs,  constables,  etc.  The  bonds  of  sheriffs,  con- 
stables, tax  collectors,  and  various  other  officers,  are  regulated 
by  statute  in  the  several  States.  The  statute  law  of  the  particu- 
lar State  should,  therefore,  be  consulted  on  the  subject,  in  con- 
nection with  the  judicial  decisions  giving  construction  thereto. 


ARTICLE  IX. 

INDEMNITY  BONDS. 

Section  1 .  In  general.  See  ante,  686,  art.  5,  §  6.  An  obligee  in 
an  indemnity  bond,  upon  being  damnified,  has  an  immediate 
riglit  to  be  re-imbursed.  Challoner  v.  Walker,  1  Burr,  574  ;  see 
Mockfeller  v.  Donnelly,  8  Cow.  639  ;  Jones  v.  Cooper,  2  Aik. 
(Vt.)  54  ;  Ramsay  v.  Gervals,  2  Bay  (S.  C),  145.  One  who  agrees 
to  indemnify  and  Save  others  harmless  against  a  certain  engage- 
ment is  bound  to  secure  them  from  incurring  any  expense,  as  it 
runs  on  at  the  time,  which  tails  upon  them  by  virtue  of  that 
engagement.  Sjyarks  v.  Martlndale,  8  East,  693.  And  it  is  held 
that  a  principal  upon  a  bond  conditioned  for  the  indemnity  of  the 
obligee  against  tlie  payment  of  money  is  liable  at  the  common 
law  beyond  the  penalty  of  the  bond,  where  the  excess  consists 
of  interest  accrued  after  the  breach  of  the  condition.  Lyon  v. 
Hall,  1  E.  D.  Smith  (N.  Y.),  250  ;  S.  C.  affirmed,  8  N.  Y.  (4  Seld.) 
148.  So,  under  a  bond  to  save  harmless,  a  judgment  against  the 
obligee  fixes  the  obligor's  liability,  and  the  obligee  may  pay  it 
without  waiting  for  execution.  Creamer  v.  Stephenson,  16  Md. 
211;  Jones  v.  Childs,  8  Nev.  121 ;  see  Tate  v.  Booe,  9  Ind.  13; 
GUen  V.  Driggs,  1  Caines,450.  It  has  been  held  that  no  greater 
sum  than  that  mentioned  as  2i  penalty  in  a  bond  given  upon  the 
issuing  of  an  injunction  can  be  recovered  in  an  action,  or  in  pro- 
ceedings on  motion  against  the  sureties.  Hovey  v.  The  Rubber 
Tip  Pencil  Co.,  6  Jones  &  Sp.  (N.  Y.)  428. 


694  BONDS. 


AKTICLE  X. 

BONDS  IN  PARTICULAR  CASES. 

Section  1.  To  pay  money.  Where  a  bond  is  conditioned  for 
the  payment  of  money  to  the  obligee,  no  time  being  specified, 
the  obligor  is  immediately  liable.  So,  where  a  bond  is  payable, 
by  express  terms,  on  demand,  it  is  payable  on  the  day  of  its 
date.  Austin  v.  Burhank,  2  Day  (Conn.),  474 ;  Ruff  v.  Bull,  7 
HaiT.  &  J.  (Md.)  14.  Bnt,  it  is  held  that  where  a  bond  is  condi- 
tioned for  the  payment  of  certain  notes  in  the  hands  of  a  third 
person,  the  obligor  cannot  be  sued  immediately,  but  is  entitled 
to  a  reasonable  time  to  perform  the  condition.  Hart  v.  Bull, 
Kirby  (Conn.),  396. 

The  condition  of  a  bond,  given  for  the  payment  of  money  on 
or  before  a  certain  day,  is  saved  by  payment  before  action 
brought,  though  not  within  the  time.  Bond  v.  Cutler^  10  Mass. 
421 ;  Gage  v.  Gannett^  11  id.  218.  But  where  interest  is  expressly 
secured  by  the  bond,  acceptance  of  the  principal  only,  after  the 
time,  will  not  save  the  forfeiture  of  the  penalty.  lb.  So,  the 
obligor  of  a  bond  for  the  payment  of  money  lent,  at  or  on  a 
certain  day  specified,  with  interest  to  be  paid  in  the  meantime  at 
stated  periods,  cannot,  by  tendering  the  principal  before  the  day 
stated  for  its  payment,  stop  the  interest.  Ellis  v.  Craig,  7  Johns. 
Ch.  7. 

In  an  action  upon  a  bond  conditioned  to  purchase  real  estate, 
if  the  terms  of  the  contract  show  that  payment  of  money  is  to 
be  made  before  the  deed  is  given,  and  no  money  is  paid  or 
offered  at  the  time  fixed,  a  tender  of  a  deed  is  not  necessary  before 
the  obligee  can  maintain  his  action.  Robinson  v.  Heard^  15 
Me.  296. 

§  2.  To  perform  services,  etc.  Where  a  bond  is  executed  with 
a  condition  that  it  shall  become  absolute  in  case  certain  services 
are  performed  by  the  obligee  within  a  specified  time,  and  the 
obligee  tenders  performance  of  the  services  within  the  time,  the 
refusal  of  the  obligor  to  accept  such  performance  will  have 
the  effect  of  actual  performance,  so  far  as  to  give  the  obligee  a 
right  of  action  upon  the  bond.  Boardman  v.  Keeler,  21  Yt.  77. 
Upon  a  bond  conditioned  to  deliver  corn  by  a  certain  day,  tender 
on  the  day  prevents  the  accrual  of  interest,  but  does  not  dis- 
charge the  obligation.     Smith  v.  Stinson,  1  Brev.  (S.  C.)  1. 

A  gave  a  bond  to  B  conditioned  that  the  obligor  should  well 


BONDS.  695 

and  sufficiently  keep  and  maintain  the  obligee  at  the  house  of 
the  former,  with  meat,  drink,  clothes  and  all  other  things  neces- 
sary and  convenient.  B  left  A' s  house,  without  sufficient  cause, 
and  brought  an  action  on  the  bond  ;  it  was  held,  that  B'  s  right 
to  necessaries,  under  the  bond,  depended  on  her  living  at  A's 
house,  and  that  the  action  could  not  be  maintained.  Hawley  v. 
Morton,  23  Barb.  255.  See  Howe  v.  Howe,  10  N.  H.  88.  So,  under 
a  bond  conditioned  for  the  support  and  maintenance  of  the 
obligee  and  his  lunatic  son,  during  life,  and  to  furnish  them 
with  good  and  sufficient  nursing  and  medical  attendance,  wash- 
ing and  lodging,  both  in  sickness  and  in  health,  the  obligor  was 
held  only  bound  to  maintain  and  support  the  obligee  and  his 
son,  at  his  own  dwelling-house,  provided  it  could  there  be  done 
in  a  suitable  manner,  which  would  be  presumed.  And  after  the 
decease  of  the  obligor,  the  family  residence,  so  long  as  it  is 
maintained,  was  held  the  proper  place  of  support.  McKilUp  v. 
McKillip,  8  Barb.  552.  See  further  illustrations,  Daniels  v. 
Boioe,  25  Iowa,  403  ;  Luques  v.  Thompson,  26  Me.  514 ;  Bacon 
V.  Lane.  21  Pick.  (Mass.)  130 ;  Burkholder  v.  Plank,  69  Penn. 
St.  225.  In  an  action  upon  a  bond  of  indemnity  against  sup- 
port, funeral  expenses  cannot  be  recovered.  Turner  v.  Hadden-, 
62  Barb.  480. 

ARTICLE  XL 

ACTION-    UP02;r   BONDS. 

Section  1.  Jurisdiction,  etc.  In  debt  on  a  bond,  the  penalty 
of  the  bond,  and  not  the  damages  laid,  or  amount  recovered, 
gives  jurisdiction  to  the  court.  Sims  v.  Harris,  8  B.  Monr.  (Ky.) 
56  ;  State  V.  Rousseau,  71  N.  C.  194.  Therefore,  where  the  pen- 
alty exceeds  $200,  a  justice  of  the  peace  has  not  jurisdiction  in 
North  Carolina.  lb.  Suit  upon  a  bond  given  in  an  action  of 
detinue,  by  the  plaintiff  in  the  original  suit,  must  be  brought  in 
the  same  court  in  which  the  original  suit  was  brought.  McDer- 
mott  V.  Doyle,  11  Mo.  443.  In  New  York  it  is  held,  that  where 
bonds  and  coupons  are  made  payable  in  that  State,  the  cause  of 
action  arises  there,  and  a  court  of  the  State  has  jurisdiction, 
though  both  parties  are  foreign  corporations.  Connecticut  Mut. 
Life  Ins.  Co.  v.  Cleveland,  etc.,  R.  R.  Co.,  26  How.  (N.  Y.)  225; 
S.  C,  41  Barb.  9. 

Where  covenants  are  secured  by  a  penalty,  the  obligee  may 
sue,  at  common  law,  in  debt  for  the  penalty,  or  bring  an  action 


696  BONDS. 

on  the  covenants.  In  covenant,  he  may  recover  as  often  as  the 
breach  arises,  and  even  beyond  the  penalty.  But  having  elected 
to  proceed  in  debt  on  the  penalty,  he  cannot  then  go  on  the  cov- 
enant. Neio  Holland  Tump.  Co.  v.  Lancaster  County,  71  Penn. 
St.  442 ;  PerTcins  v.  Lyman,  11  Mass.  83 ;  McLaugliUn  v. 
HutcTiins,  3  Ark.  207;  Martin  v.  Taylor,  1  Wash.  1. 

§  2.  When  an  action  lies.  The  right  of  action  upon  a  bond  of 
indemnity  against  "liability"  is  complete  when  the  obligee 
becomes  legally  liable  for  damages.  Bancroft  v.  Winspear,  44 
Barb.  209 ;  Chace  v.  Hinman,  8  Wend.  452.  As  for  example, 
.by  a  judgment,  though  no  actual  damage  is  shown.  Jones  v. 
Childs,  8  Nev.  121.  See  ante,  693,  art.  9,  §  1.  Action  may  be 
brought  on  a  bond  for  a  sum  payable  on  demand,  without 
demand.  Husbands  v.  Vincent,  5  Harr.  (Del.)  268  ;  Omohundro 
V.  Omohundro,  21  Gratt.  (Va.)  626.  And  a  bond  payable  ''with 
interest  from  date,  the  interest  to  be  paid  annually,"  is  due  and 
payable  from  date,  and  no  demand  need  be  made  before  suit 
brought.  The  interest,  in  such  case,  becoming  due  at  the  end  of 
each  year,  is  not  barred  by  any  statute  of  limitation  which  does 
not  bar  a  suit  on  the  bond  itself.  Knight  v.  Bradswell,  70  N. 
C.  709.  And  when  the  obligor  in  a  bond  for  the  conveyance  of 
land  has  conveyed  the  land  to  a  third  person  by  a  deed  of  war- 
ranty made  "  subject  to  the  incumbrance  created  by  the  bond," 
no  demand  for  a  conveyance  need  be  made  on  the  obligor  prior 
to  the  commencement  of  an  action  upon  the  bond.  McCarthy  v. 
Mansfield,  56  Me.  538.  In  Pennsylvania,  an  action  may  be 
maintained  against  the  sureties  of  a  public  officer  immediately 
on  the  settlement  of  his  account.  Speek  v.  Commonwealth,  3 
Watts  &  Serg.  (Penn.)  324.  And  see  Governor  v.  Matlock,  1 
Dev.  L.  (N.  C.)  214. 

An  action  may  be  maintained  on  a  bond  payable  on  a  day  cer- 
tain, at  a  place  named,  without  allegation  or  proof  of  demand  of 
payment  at  the  time  and  place  mentioned.  Langston  v.  South 
Carolina  E.  R.  Co.,  2  S.  C.  248 ;  Truman  v.  McCollum,  20 
Wis.  360.  So,  where  a  penal  bond  becomes  payable  upon  a 
breach  of  the  condition,  and  the  principal  obligor  is  the  party 
by  whom  the  condition  is  to  be  performed,  such  principal  obli- 
gor must  have  knowledge  of  the  breach,  if  one  exists,  and  no 
notice  or  request  is  necessary  to  fix  his  liability.  The  co-obli- 
gors of  the  principal  upon  such  a  bond  stand  as  sureties  only 
between  themselves  and  the  principal ;  but  as  to  the  obligee  of 
the  bond,  they  are  liable  in  all  respects  as  principals,  and  are 


BONDS.  697 

entitled  to  no  notice  or  request  to  wliich  tHe  principal  is  not 
entitled.    Bulkley  v.  Finch,  37  Conn.  71. 

The  maker  of  a  bond  has  the  whole  day  on  which  it  falls  due 
in  which  to  pay  it,  cannot  be  sued  upon  it  until  the  next  day. 
Zachery  v.  Brown,  17  Ark.  442. 

§  3.  Upon  yrhat  state  of  facts.  The  condition  of  a  bond  was, 
that  a  holder  should  not  prosecute  the  sureties  till  he  had  ex- 
hausted all  legal  remedies  against  the  principal.  Suit  was 
brought  in  the  first  instance  against  the  sureties,  and  it  was  held 
not  to  violate  the  condition,  the  principal  being  totally  insolvent. 
Heralson  v.  Mason,  53  Mo.  211.  In  an  action  upon  a  penal 
bond  the  judgment,  in  form,  is  for  the  penalty  ;  and  it  is  held, 
that  the  right  to  this  judgment  is  not  affected  hy  the  assignment 
b}^  the  plaintiff  of  a  breach  of  the  condition  of  the  bond,  as  one 
of  the  facts  constituting  his  cause  of  action,  as  such  assignment 
of  a  breach  should  be  made.  Western  Bank  v.  STierioood,  29 
Barb.  383.  See  Howard  v.  Farley,  18  Abb.  (N.  Y.)  260. 
Where  a  penal  bond  is  given  to  secure  the  performance  of  cer- 
tain work,  and  the  condition  of  the  bond  is  broken,  and  a  suit  is 
brought  on  the  bond  for  indemnitj^,  it  is  sufficient  to  sustain  ,the 
action,  that  there  had  been  a  breach  of  the  condition  at  the  time 
the  suit  was  commenced ;  and  such  damages  may  be  included 
in  the  assessment  as  the  obligee  has  been  subjected  to  by  the 
breach  of  the  condition  of  the  bond,  although  they  may  have 
accrued  after  the  suit  was  commenced.    Spear  v.  Stacy,  26  Vt.  61. 

If  the  obligees  in  a  bond  conditioned  for  their  support  volun- 
tarily cease  to  receive  such  support  during  six  years,  no  action 
can  be  maintained  upon  such  bond  until  after  demand  for,  and 
refusal  to  afford,  such  support.  Stickney  v.  Stickney,  1  Fost. 
(N.  H.)  61. 

Where  a  money  bond  is  made  payable  in  installments  at  differ- 
ent times,  debt  will  lie  thereon  after  all  the  installments  have 
become  due,  but  not  to  recover  the  amount  of  one  installment. 
State  V.  Scoggin,  5  Eng.  (Ark.)  326.  Where  all  the  installments 
have  not  become  payable,  the  remedy  is  by  action  for  breach  of 
the  covenant.  lb.  But  where  more  than  one  installment  has 
become  due,  separate  actions  will  not  lie  to' recover  each.  lb. 
See  Hopkins  v.  Beaves,  2  Browne  (Penn.),  93 ;  Black  v.  Car- 
uthers,  6  Humph.  (Tenn.)  87 ;  Warwick  v.  Matlock,  7  N.  J.  L.  200. 

It  is  held,  that  the  obligee,  in  a  bond  to  indemnify  him  for 
having  given  a  receipt  to  an  officer,  for  goods  attached,  is  dam- 
nified by  an  attachment  of  his  property  in  a  suit  on  his  receipt, 

Vol.  L  — 88 


698  BONDS. 

and  may  thereupon  bring  an  action  on  his  bond.  Otis  v.  BlaTce, 
6  Mass.  336.  And  see  Murrell  v.  Jolmson,  1  Hen.  «fe  M.  (Va.) 
460  ;  Kip  V.  Brigham,  7  Johns.  168. 

Where  the  condition  of  a  bond  was,  that  the  defendant  should 
carry  on  the  business  of  distilling  cider  brandy  for  seven  years 
and  three  months,  and  keep  an  exact  account  of  the  quantity 
distilled,  and  deliver  to  the  plaintiff,  when  demanded,  one-tenth 
part  thereof,  and  the  defendant  did  carry  on  such  business,  but 
kept  no  account  and  delivered  nothing  to  the  plaintiff ;  it  was 
held,  that  the  latter  could  have  no  action  on  the  bond  until  the 
end  of  the  specified  term.     Cottle  v.  Payne,  3  Day  (Conn.),  289. 

When  a  bond  or  other  contract  lias  been  surrendered  or  satis- 
fied by  reason  of  mistake  or  fraud,  it  may  be  treated  as  a  valid 
and  subsisting  instrument.  But  where  the  only  error  apparent 
was  that  the  plaintiff,  through  his  own  neglect,  inattention,  or  ig- 
norance, allowed  a  settlement  to  be  made,  and  his  bond  to  be 
discharged  by  his  attorney,  without  claiming  a  full  performance 
of  its  conditions,  no  suit  can  be  maintained  oil  the  bond.  Chap- 
Tnan  v.  Lothrop,  39  Me.  431. 

By  the  common  law,  a  bond  may  be  good,  and  may  be  enforced 
by  suit,  although  the  obligee  has  no  beneficial  interest  in  it. 
Hoxie  V.  Weston,  19  Me.  322. 

In  a  recent  case  in  North  Carolina,  it  is  held  that  no  action  can 
be  sustained  upon  a  bond  payable  after  the  ratification  of  a  treaty 
"of  peace  between  the  United  States  and  the  Confederate  States. 
This  is  the  language  of  the  Confederate  treasury  notes  ;  and  the 
plain  and  universally  understood  meaning  of  those  notes  was, 
that  if  the  Confederate  States  obtained  independence,  then  their 
notes  would  be  paid,  otherwise  not.  When  the  parties  to  the 
bond  adopted  the  language  of  the  Confederate  treasury  notes, 
they  adopted  their  well-understood  meaning ;  and  as  there  has 
been  no  treaty,  and  no  ratification,  and  as  peace  exists,  but  not 
by  ratification  of  a  treaty,  nor  yet  by  the  independence  of  the 
Confederate  States,  the  condition  precedent  has  not  been  per- 
formed, and  never  can  be.  McNincJi  v.  Ramsey,  66  N.  C.  229. 
See  Garlington  v.  Priest,  13  Fla.  659.  But  a  bond,  executed  in 
1864,  conditioned  for  the  delivery  of  Confederate  bonds,  the  con- 
sideration being  Confederate  treasury  notes  loaned  to  the  maker 
of  the  bond,  was  held  not  illegal  and  void  ;  and  that  a  recovery 
might  be  had  thereon  for  its  value  in  United  States  currency  to 
be  estimated  according  to  the  scale  prescribed  by  law.  HaugMon 
V.  Merony,  65  N.  C.  124  ;  and  see  TTiorington  v.  Smith,  8  Wall.  1. 


BONDS.  699 


ARTICLE  XII. 


DEFENSE   TO    ACTION    ON   BOND. 

Section  1.  Grounds  of,  in  general.  It  is  a  general  rule,  that  au 
obligor  may  avoid  a  bond,  by  showing  that  it  was  obtained  by 
fraud  or  duress,  or  that  the  consideration  is  illegal  or  against  the 
policy  of  the  law.  Page  v.  Trufant,  2  Mass.  159.  Numei'ous 
illustrations  of  this  rule  are  given,  ante,  673,  683,  art.  3,  §  2 ;  art.  5, 
§  4.  It  was  stated  in  an  English  case,  that  since  the  decision  in 
Pole  V.  Harrobln,  reported  9  East,  416, 7i.,  it  has  been  generally 
understood  that  an  obligor  is  not  restrained  from  pleading  any 
matter  which  shows  that  the  bond  was  given  upon  an  illegal  con- 
sideration, whether  consistent  or  not  with  the  condition  of  the 
bond.  Paxton  v.  Popham,  9  East,  408,  421.  And  see  Gremlle  v. 
Atkins,  9  Barn.  &  C.  462.  But  the  illegality  must,  as  a  matter 
of  substance,  be  made  to  appear  clearly  and  with  certainty  upon 
the  face  of  the  plea.  Royal  British  Bank  v.  Turquand,  5  El. 
&  Bl.  243 ;  Hill  v.  M.  &  S.  Water-  Works  Co.,  2  B.  &  Ad.  552  ;  1 
Smith's  Lead.  Cas.  499.  As  if  the  statute  of  9  Anne,  cap.  14, 
against  gaming,  be  pleaded  to  a  bond,  the  plea  must  show  at 
what  game  the  money  was  lost.  Colborne  v.  Stockdale,  1  Strange, 
493. 

The  illegality  pleadable  in  defense  to  an  action  upon  a  bond 
may  be  such  as  exists  at  common  law,  or  it  may  arise  from  a 
statutory  enactment.  In  addition  to  the;  illustrations  of  the  first 
kind  given  in  preceding  articles,  may  be  mentioned  the  case  of  a 
bond  by  which  each  of  the  parties  binds  himself  not  to  work  or 
employ  others  to  work  for  him,  except  at  certain  rates  prescribed 
by  the  terms  of  the  bond.  Such  a  bond,  being  in  restraint  of 
trade,  is  void.  Hilton  v.  Eckersley,  6  El.  &  Bl.  47 ;  S.  C.  affirmed, 
id.  66.  So,  covenants  in  a  separation  deed  that  the  husband 
shall  part  with  the  control  over  his  children,  are  void  at  common 
law,  on  the  ground  of  public  policy.  People  v.  Mercein,  3  Hill 
(N.  Y.),  399  ;  8  Paige,  47;  VansiUart  v.  VansiUart,  2  De  G.  &  J. 
249.  And  where  a  bond  was  to  secure  money  agreed  to  be  given 
for  the  discharge  of  a  person  unlawfully  impressed,  it  was  held 
void.     Pole  V.  Harrobln,  9  East,  416,  n. 

Illegality  created  by  statute  is  no  less  fatal  to  the  validity  of  a 
bond.  Bank  of  United  States  v.  Owens,  2  Pet.  527,  539  ;  Bar- 
ton V.  Port  Jackson  Plankroad  Co.,  17  Barb.  397.  Nor  is  it  neces- 
sary that  the  statute  should  contain  words  of  positive  prohibi- 


700  BONDS. 

tion.  lb.  The  principle  is  stated  to  be  that  every  contract  made 
for  or  about  any  matter  or  thing  which  is  prohibited  and  made 
unlawful  by  statute,  is  a  void  contract,  though  the  statute  does 
not  mention  that  it  shall  be  so,  but  only  inflicts  a  penalty  on  the 
offender,  because  a  penalty  implies  a  prohibition,  though  there 
are  no  prohibitory  words  in  the  statute.  Begins  v.  Armistead^ 
10  Bing.  110.  And  see  Coburn  v.  Odell,  10  Fost.  (N.  H.)  540  ; 
ElkuiS  V.  FarTchurst,  17  Vt.  105  ;  Stanly  v.  Nelson,  28  Ala.  514. 
It  was  held  in  some  of  the  earlier  English  cases  that  where  there 
are  several  conditions  to  a  bond,  and  any  one  of  them  is  void 
by  statute,  the  whole  bond  is  void.  Norton  v.  Syms,  Hob.  14; 
S.  C,  Moore,  856 ;  Lee  v.  Colshill,  Cro.  Eliz.  599 ;  Newman  v. 
Newma/i,  4  M.  &  S.  68.  But  this  rule  must  be  now  understood 
to  apply  only  to  cases  where  the  statute  enacts  that  all  instru- 
ments containing  any  matter  contrary  thereto,  shall  be  void  ; 
otherwise,  the  common-law  rule  will  apply,  and  that  part  only 
will  be  void  which  contravenes  the  provisions  of  the  statute. 
GasJcell  v.  King,  11  East,  165 ;  How  v.  Synge,  15  id.  440  ;  Yundt 
V.  Roberts,  5  Serg.  &  R.  (Penn.)  139 ;  1  Sm.  Lead.  Cas.  502 ;  ante^ 
683,  art.  5,  §  4. 

If  a  bond  be  given  to  compound  a  felony,  it  is  a  good  defense 
in  an  action  on  the  bond.  Steuben  County  Bank  v.  Matliewson, 
5  Hill  (N.  Y.),  249  ;  Collins  v.  Blantern,  2  Wils.  357.  See  also 
Bowen  v.  Buck,  28  Vt.  308 ;  Shaw  v.  Reed,  30  Me.  105 ;  Fay  v. 
Oatley,  6  Wis.  42  ;  Oshaldiston  v.  Simpson,  13  Sim.  513.  So,  it 
is  a  good  defense  in  an  action  upon  a  ne  exeat  bond,  that  the 
defendant  has  paid  the  costs,  and  that  the  writ  issued  upon 
good  cause.  Coombs  v.  Newton,  4  Blackf.  (Ind.)  120.  And  the 
plaintiff's  non-performance  of  a  condition  precedent  may  be 
pleaded  in  bar  of  an  action  on  a  bond.  Patterson  v.  Salmon, 
3  id.  131. 

The  surety  on  a  bond  is  entitled  to  set  up  any  legal  or  equita- 
ble defense  which  would  have  availed  his  principal,  such  as  a 
set-off,  counter-claim,  etc.  And  he  may  introduce  any  evidence 
tending  to  show  such  defense.     Jarratt  v.  Martin,  70  N.  C.  459. 

§  2.  Denying  execution.  The  defendant,  in  an  action  upon  a 
bond  executed  by  him,  cannot  plead  matter  contradictory  to  the 
bond.  Miller  v.  Elliott,  1  Ind.  484.  And  a  plea  that  the  bond 
declared  on  was  executed  under  a  mistaken  impression  of  its 
legal  effect,  made  on  the  defendant's  mind  by  the  plaintiff,  is 
bad.  lb.  So,  on  non  est  factum  pleaded,  the  defendant  cannot 
show  that  the  bond  signed  was  represented  to  be  of  a  different 


BONDS.  701 

amount.  Edans  v.  Hudson,  5  Harr.  (Del.)  366.  He  sliould 
plead  ^-?er  fraudem.  lb.  See  Dorr  v.  Munsell,  13  Johns.  430. 
But  where  a  party  appears  to  have  executed  a  bond  with  another 
as  surety,  but  whose  name  has  been  forged,  he  will  not  be  liable. 
Seely  v.  People,  27  111.  173. 

§  3.  Tmpeachiug  consideration.  The  rule  of  the  common  law 
is,  that  in  an  action  on  a  bond,  conditioned  for  the  payment  of  a 
certain  and  ascertained  sum  of  money  within  a  specified  time, 
it  is  not  competent  for  the  obligors  to  go  behind  the  bond  for  the 
purpose  of  showing  what  was  its  consideration,  or  that  the  con- 
sideration has  failed.  Dor  tan  v,  Sammis,  2  Johns.  179, 7iote  ; 
Dorr  V.  Munsell,  13  id.  430 ;  Bates  v.  Hinton,  4  Mo.  78  ;  Yan 
Valkenburgh  v.  Smith,  60  Me.  97 ;  Harris  v.  Harris,  23  Gratt. 
(Va.)  737;  Gray  v.  Barton,  55  N.  Y.  (10  Sick.)  68,  71.  The  only 
answer  that  can  be  made  to  it  is  non  est  factum,  payment,  or 
release.  Mitchell  v.  Williamson,  6  Md.  210.  But  this  rule  is  not 
recognized  in  South  Carolina.  See  Thompson  v.McCord,  2  Bay 
(S.  C),  76.  And  under  the  laws  of  California,  a  sealed  instru- 
ment, ^rma/'ac/e,  imports  a  consideration,  subject,  however, 
to  rebuttal.  McCarty  y.  Beach,  10  Cal.  461.  So,  in  a  number 
of  the  States  as  New  York,  Ohio,  Tennessee,  Indiana,  Kentucky, 
Missouri,  etc.,  the  impeachment  of  the  consideration  of  a  bond 
is  allowed  by  statute,  and  a  failure  of  consideration  may  be 
pleaded  in  bar  to  a  recovery  on  a  bond.  See  Case  v.  Boughton, 
11  Wend.  106  ;  Cramr  v.  Wilson,  4  Abb.  Ct.  App.(N.  Y.)  374  ; 
Peebles  v.  Stevens,  1  Bibb  (Ky.),  500 ;  FlacTc  v.  Cunningham, 
3  Blackf.  (Ind.)  131 ;  Smith  v.  Busly,  15  Mo.  387  ;  Greathouse 
V.  Dunlap,  3  McLean,  303 ;  Tenn.  Code,  §  1806. 

In  North  Carolina  it  is  held,  that  no  consideration,  or  a  failure 
of  consideration,  is  no  defense  to  a  bond  against  an  assignee 
for  value  and  without  notice  of  any  claim  of  the  defendant,  as 
maker.  Parlcer  v.  Flora,  63  N.  C.  474.  So,  in  an  action  on  a 
bondj  mere  inadequacy  of  consideration  is  no'  defense,  in  the 
absence  of  fraud  or  imposition  ;  nor,  in  such  case,  is  it  an  objec- 
tion in  an  action  for  specific  performance.  So,  held,  in  an  action 
on  a  bond  given  for  the  price  of  a  male,  which  had  a  latent  dis- 
ease, of  which  it  died  within  a  week  of  the  sale,  without  having 
rendered  any  service  of  value.     Winslow  v.  Wood,  70  id.  430. 

§  4.  Averment  of  fraud.  See  ante,  676,  art.  4,  §  1.  At  common 
law,  fraud  could  not  be  pleaded,  or  given  in  evidence  as  a  defense 
to  an  action  on  a  specialty,  unless  the  execzition  of  the  instru- 
ment was  vitiated.    An  obligor  might,  therefore,  avoid  his  bond 


702  BONDS. 

by  showing  that  it  was  misread,  or  its  purport  falsely  declared 
at  the  time  of  its  execution.  Dorr  v.  Munsell,  13  Johns.  430  ; 
Anthony  v.  Wilson,  14  Pick.  (Mass.)  803  ;  Schuylkill  County  y. 
Copley,  67  Penn.  St.  386  ;  S.  C,  5  Am.  R.  441.  But  he  could  not 
show  that  he  had  been  induced  to  execute  it,  by  fraudulent  rep- 
resentations as  to  the  nature  or  value  of  the  consideration  on 
which  the  bond  was  founded.  Bale  v.  Roosenelt,  9  Cow.  309  ; 
Stevens  v.  Judson,  4  Wend.  471 ;  Baur  v.  Rotli,  4  Rawle 
(Penn.),  83  ;  Bonaldson  v.  Benton,  4  Dev.  &  Bat.  (N.  C.)  435  ; 
Hudson  V.  Williams,  3  Blackf.  (Ind.)  170 ;  Wyche  v.  Mack- 
lin,  2  Rand.  (Ya.)  426.  This  distinction  is,  however,  dis- 
regarded in  some  of  the  States.  See  Bliss  v.  Thompson,  4  Mass. 
492 ;  Hazard  v.  Irwin,  18  Pick.  (Mass.)  95  ;  Hoitt  v.  Holcomb, 
3  Post.  (N.  H.)  535  ;  Phillips  v.  Potter,  7  R.  I.  289  ;  Tomlinson  v. 
Mason,  6  Rand.  (Va.)  169 ;  Hartshorn  v.  Day,.lQ  How.  (U.  S.) 
211,  222.  While  in  other  of  the  States,  it  has  been  abolished  by 
statute.  See  Case  v.  Boughton,  11  Wend.  (N".  Y.)  106 ;  War- 
ing V.  Cheesehorough,  1  Hill  (S.  C),  187;  Swift  v.  Hawkins,  1 
Ball.  (Pa.)  17 ;  Huston  v.  Williams,  3  Blackf.  (Ind.)  171.  And 
deceit  or  artifice  practiced  by  one  party  for  the  purpose  of  mis- 
leading the  other,  with  regard  to  the  nature  or  value  of  the  con- 
sideration, or  any  other  material  fact  or  circumstance,  may  be 
given  in  evidence  as  a  defense  to  an  action  on  a  specialty  at  law, 
with  the  same  eflFect  as  if  the  contract  were  by  parol.  Boynton 
V.  Hubbard,  7  Mass.  492  ;  Somes  v.  Skinner,  16  id.  348. 

To  avoid  a  bond  on  the  ground  that  it  was  fraudulently  ob- 
tained, it  should  appear  that  the  obligee  had  an  agency  in  the 
alleged  fraud.  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240.  But  if  the 
obligor  knew  of  the  fraud,  before  he  executed  the  bond,  he  can- 
not impeach  it  on  that  ground.  Higgs  v.  Smith,  3  A.  K.  Marsh. 
(Ky.)  338.  Where  the  obligee  either  personally  or  through  his 
agent  procures  a  party  to  act  as  surety  for  the  obligor  through 
fraudulent  representation,  the  bond  will  be  held  void  as  to  such 
surety.     Gasconade  County  v.  Sanders,  49  Mo.  192. 

If  a  party  seeks  to  relieve  himself  from  the  obligation  of  his 
bond,  on  the  ground  of  actual  fraud  or  misrepresentation,  he 
must  establish  that  there  was' a  false  representation  of  a  matter 
of  substance,  important  to  his  interests,  and  which  actually  mis- 
led him  to  his  hurt.  Fulton  v.  Hood,  34  Penn.  St.  365.  And  a 
false  affirmation  of  a  matter  resting  in  opinion,  or  even  of  a  fact 
equally  open  to  the  knowledge  or  inquiry  of  both  parties,  is  not 
available  for  such  purpose.  lb.    See  Mason  v.  Ditchhourne,  1 


BONDS.  703 

M.  &  Rob.  460  ;  Stone  v.  Compton,  5  Bing.  N.  C.  145 ;  Graves  v. 
Tucker,  10  Sm.  &  M.  (Miss.)  21. 

A  distinction  is  made  between  a  defense  resting  upon  facts 
which  are  misstated,  in  order  to  induce  a  party  to  enter  into  a 
bond,  the  contents  of  which  he  knows ;  and  one  resting  on  a 
misrepresentation  of  the  contents  of  the  instrument  itself  to  an 
illiterate  person.  In  the  former  case  the  bond  is  the  obligation 
of  the  party  who  seals  it,  although  it  is  invalidated  by  the  fraud  ; 
in  the  latter,  it  is  not  his  deed  or  bond  at  all.  Greene  v.  North 
Buffalo  Township,  5<d  Penn.  St.  110;  Schuylkill  County  v.  Cop- 
ley, 67  id.  386 ;  S.  C,  5  Am.  R.  441  ;  see  ante,  673,  676,  art.  3,  § 
2  ;  art.  4,  §  1. 

§  5.  Performance  of  condition.  See  ante,  680,  694,  art.  5,  §  5  ; 
art.  10,  §  2.  If  the  condition  of  a  bond  be  to  pay  5()l.  though  it 
is  not  said  of  money,  yet  it  must  be  so  intended,  and  the  obligee 
cannot  tender  fifty  pounds  weight  of  stone.  Sid.  151.  And  the 
condition  of  a  bond  being  "to  render  a  fair,  just  and  perfect 
account,  in  writing,  of  all  sums  received,"  if  the  obligor  neglect 
to  pay  over  such  sums,  it  is  a  breach  of  the  condition.  Bache  v. 
Proctor,  1  Doug.  382.  But  a  conveyance  of  a  lot  by  name,  "  as 
said  to  contain  600  acres,  be  the  same  more  or  less,"  was  held  to 
be  a  performance  of  the  condition  of  a  bond  to  convey  that  lot 
"containing  600"  acres,  though  the  lot  fell  short  125  acres. 
Mann  v.  Pearson,  2  Johns.  (N.  Y.)  37.  See  Jackson  v.  Defendorf, 
1  Caines  (N.  Y.),  493.  In  an  action  upon  a  bond  conditioned  that 
the  obligor  and  his  wife  should  arrange  their  present  difficulty 
and  live  together  as  husband  and  wife,  it  was  held  not  a  sufficient 
answer  to  the  action,  for  the  obligor  to  show  that  he  had  made 
overtures  for  a  reconciliation,  which  were  not  successful.  Axtell 
V.  Caldwell,  24  Penn.  St.  88. 

As  to  what  will  excuse  the  non-performance  of  a  condition,  it 
may  be  stated  generally,  that  if  a  bond  or  other  obligation  be 
upon  a  condition  possible  at  the  time  it  was  made  and  which 
afterward  became  impossible  to  perform,  by  the  act  of  God,  or 
of  the  law,  or  of  the  obligee,  the  condition  is  saved.  Green  v. 
Smith,  4  Cold.  (Tenn.)  436  ;  People  v.  Bartlett,  3  Hill,  570  ;  Bain 
V.  Ltjle,  Q8  Penn.  St.  60;  People  v.  Tubhs,  37  N.  Y.  (10  Tiff.) 
586,  588  ;  Carpenter  v.  Stevens,  12  Wend.  589  ;  Co.  Litt.  206  a. 
But  see  Steele  v.  Buck,  61  111.  343;  S.  C,  14  Am.  R.  60.  If  a 
condition  consists  of  two  parts,  of  which  one  was  not  possible, 
at  the  making  of  the  condition,  to  be  performed,  the  obligor 
ought,  nevertheless,  to  perform  the  other.     Wigley  v.  Blackwal^ 


704  BONDS. 

Cro.  Eliz.  780;  Da  Costa  v.  Daks,  1  Bos.  &  Pul.  242.  But  lie 
wlio  prevents  the  performance  of  a  condition  cannot  take  advan- 
tage of  its  breach,  or  non-performance.  Blandford  v.  Andrews, 
Cro.  Eliz.  694 ;  Franklin  Fire  Ins.  Co.  v.  Hamill,  5  Md.  170 ; 
Carrel  v.  Collins,  2  Bibb  (Ky.),  429.  Thus,  if  the  precedent  act 
is  to  be  performed  at  a  certain  time  or  place,  and  a  strict  perform- 
ance of  it  is  prevented  by  the  absence  of  the  party  who  has  a 
right  to  claim  it,  the  law  will  not  permit  him  to  set  up  the  non- 
performance of  the  condition  as  a  bar  to  the  responsibility  which 
his  part  of  the  contract  had  imposed  upon  him.  Williams  v. 
Bank  of  the  United  States,  2  Pet.  96,  102.  See  ante,  694,  art. 
10,  §  2. 

§  6.  Discharge  by  payment^  etc.  See  ante,  694,  art.  10,  §  1. 
In  general,  the  lapse  of  twenty  years  after  a  right  of  action  has 
accrued  on  a  bond  is  presumptive  evidence  that  such  obligation 
has  been  discharged.  Jackson  v.  Hotchkiss,  6  Cow.  401  ;  Lyon 
V.  Adde,  63  Barb.  89  ;  Central  Bank  of  Troy  v.  Heydorn,  48  N, 
Y.  (3  Sick.)  260  ;  McDowell  v.  McCullongli,  17  Serg.  &  R.  (Penn.) 
51 ;  Barnett  v.  Emerson,  6  T.  B.  Monr.  (Ky.)  607.  The  presump- 
tion arising  from  lapse  of  time  may,  however,  be  repelled  by  cir- 
cumstances explaining  satisfactorily  why  an  earlier  demand  has 
not  been  made.  Bailey  v.  Jackson,  16  Johns.  210 ;  as  for  exam- 
ple, the  continued  absence  of  the  creditor.  lb. ;  or  the  permanent 
absence  of  the  debtor.  Shields  v.  Pringle,  2  Bibb  (Ky.),  887; 
or  the  debtor's  insolvency.  Levy  v.  Hampton,  1  McCord  (S.  C), 
145 ;  Boardman  v.  De  Forest,  5  Conn.  1 ;  or  inability  to  pay. 
Blackett  v.  Wall,  3  Mann.  &  Ryl.  119 ;  Daggett  v.  Tallman,  8 
Conn.  168;  or  the  near  relationship  of  the  parties.  Hillary  v. 
Waller,  12  Ves.  239,  266.  So,  the  presumption  may  be  rebutted 
by  proof  of  an  admission  within  twenty  years  that  the  debt  is 
due  and  unpaid.  Cottle  v.  Payne,  3  Day  (Conn.),  289  ;  Lyon  v. 
Adde,  63  Barb.  89  ;  or  by  proof  of  payment  of  interest,  which  is 
equivalent  to  an  admission.  McDowell  v.  McCullough,  17  Serg. 
&  R.  51.  And  the  indorsement  by  the  obligee  on  the  obligation 
of  a  credit  for  interest,  while  the  obligation  was  in  full  force, 
and  before 'the  presumption  attached.  Roseboom  v.  Billington, 
17  Johns.  182 ;  and  the  indorsement  in  the  handwriting  of  the 
obligor,  are  good  evidence  to  rebut  the  presumption,  whether 
made  before  or  after  the  presumption  arose.  Boltz  v.  Bullman, 
1  Yeates  (Penn.),  584 ;  McLean  v.  Mc  Dug  aid,  8  Jones'  L.  (N. 
C.)  383.  See  Houliston  v.  Smyth,  2  C.  &  P.  22;  Livingston  v. 
Arnoux,  56  N.  Y.  (11  Sick.)  519 ;  Grantham  v.  Canaan,  38  N. 


BONDS.  705 

H.  268  ;  Searle  v.  Lord  Barrington,  2  Strange,  826  ;  S.  C,  8 
Mod.  279  ;  Hose  v.  Bryant,  2  Camp.  321.  Tlie  presumption  of 
payment  after  twenty  years  may,  likewise,  be  repelled  by  evi- 
dence that  the  obligor  had  no  opportunity  or  means  of  paying. 
Fladong  v.  Winter^  19  Yes.  196. 

Where  the  obligation  of  a  bond  is  absolved  by  a  rescission  of 
the  contract  of  which  it  was  evidence,  an  action  on  the  bond 
may  be  defended  at  law.  Moore  v.  Dlal^  3  Stew.  (Ala.)  157. 
So,  a  written  engagement,  by  the  obligee,  not  to  call  on  the 
obligor  for  money  and  goods  made  payable  yearly,  unless  he 
shall  need  them  for  his  support,  may  be  pleaded  in  bar  of  a  suit 
on  the  bond.  Filer  v.  Blssel,  2  Root  (Conn.),  31:7.  And  if  a 
bond  is  paid  by  a  third  person,  at  the  request  of  the  obligor,  a 
suit  cannot  afterward  be  maintained  upon  it  in  the  name  of  the 
obligee,  for  the  use  of  the  person  by  whom  the  payment  was 
made.     Simmons  v.  Walker^  18  Ala.  664. 

The  delivery  by  the  obligee,  to  a  third  person,  of  a  bond 
secured  by  a  trust  mortgage,  upon  the  understanding  that  the 
third  person  is  to  deliver  the  bond  to  the  obligor,  and  himself 
assume  the  payment  of  the  debt,  followed  by  a  delivery  of  the 
bond  to  the  obligor  by  such  third  person,  will,  in  the  absence 
of  fraud,  operate  a  cancellation  of  the  bond  and  a  discharge  of 
the  trust.    Piercy  v.  Piercy,  5  W.  Va.  199. 

The  emancipation  of  slaves  was  held  to  discharge  the  next  of 
kin  from  a  refunding  bond  given  by  them  to  the  administrator. 
Hinton  v.  WMtehurst,  68  N.  C.  316.  See  Henderlite  v.  TJiurman, 
22  Graft.  (Va.)  466. 

ARTICLE  XIII. 

REMEDY  ON  LOST  BOND. 

Section  1.  In  general.  Formerly,  a  court  of  common  law 
afforded  no  remedy  on  a  lost  bond,  for  the  reason  that  there 
could  be  no  profert  of  the  instrument,  without  which  the  declara- 
tion would  be  fatally  defective.  Bnt  prof e7't  has  been  dispensed 
with,  and  courts  of  law  now  entertain  jurisdiction  upon  an 
allegation  of  loss,  by  time  and  accident,  stated  in  the  declara- 
tion. See  Co.  Lift.  35  b. ;  Franceschi  v.  Marino,  3  Edw.  Ch. 
586  ;  Bromley  v.  Holland,  7  Ves.  19,  20 ;  Totty  v.  NesbiU,  3  T. 
R.  153,  note;  Murlock  v.  Brown,  7  Humph.  (Tenn.)  61.  If  the 
bond  is  lost  after  the  declaration  is  filed,  it  has  been  held  the 
plaintiff  must  amend.  Ante,  163,  164  ;  Smith  v.  Woodward,  4 
Vol.  I. —89 


706  BONDS. 

East,  685  ;  Chamherlln  v.  Saioyer,  19  Ohio,  360.  See  Lester  v. 
Oomrnor,  12  Ala.  024.  But,  although  the  liberality  of  courts 
of  law  now  dispenses  with  the  necessity  of  making  profert,  and 
permits  a  plaintift'  to  recover  on  a  lost  bond  by  proving  its  loss 
and  contents,  yet  this  circumstance  does  not  in  the  slightest 
degree  change  the  course  in  equity.  Kemp  v.  Pryor^  7  Ves. 
249 ;  Mayne  v.  Orisioold,  3  Sandf.  (N.  Y.)  463,  478  ;  S.  C,  9  N. 
Y.  heg.  Obs.  2o.  And  courts  of  equity  will  always  give  relief 
where  the  bond  has  been  lost,  or  when  it  has  been  defaced  by 
a(;cident  or  b}^  design,  provided  the  obligee  has  been  guilty  of  no 
misconduct  connected  therewith.  Harrison  v.  TurbemUe,  2 
Humph.  (Tenn.)  242  ;  Kerney  v.  Kerney,  6  Leigh  (Va.),  478 ; 
Foster  7  Williams^  5  B.  Monr.  (Ky.)  197.  See  a  full  discussion 
of  this  subject  under  the  head  of  Accident,  ante,  163,  164. 


BOUNDARIES.  TOT 


CHAPTER  XXIX. 

BOUNDARIES. 

TITLE  I. 

PRIVATE  BOUNDARIES 

ARTICLE  I. 

HOW   ESTABLISHED    BETWEEN"   INDIVIDUAL    PROPKIETOKS. 

Section  1.  Boundary  defined.  Boundary,  in  the  sense  here  in- 
tended, is  defined  as  "  any  separation,  natural  or  artificial,  which 
marks  the  confines  or  line  of  two  contiguous  estates.  The  term 
is  applied  to  include  the  objects  placed  or  existing  at  the  angles 
of  the  bounding  lines,  as  well  as  those  which  extend  along  the 
lines  of  separation."  1  Bouv.  Diet.  218.  And  where  boundaries 
are  denoted  by  monuments  fixed  at  the  angles,  the  connecting 
lines  are  always  presumed  to  be  straight,  if  not  otherwise  de- 
scribed. Nelson  v.  Hall,  1  McLean,  519  ;  Kingsland  v.  CJdt- 
tenden,  6  Lans.  (N.  Y.)  16  ;  S.  C.  afiirmed,  61  N.  Y.  (16  Sick.) 
618  ;  Allen  v.  Kingsbury,  16  Pick.  (Mass.)  235,  238  ;  McCoy  v. 
Oalloway,  3  Ohio,  382  ;  JenTtS  v.  Morgan,  6  Gray  (Mass.),  448 . 
A  natural  boundary  is  a  natural  object  remaining  where  it  was 
placed  by  nature.  Thus  shores,  streams  and  rivers,  ponds, 
beaches,  highways  and  the  like,  are  among  the  natural  ob- 
jects often  referred  to  as  boundaries  in  deeds.  And  in  North 
Carolina,  a  savanna  is  a  "natural  boundary,"  in  the  sense  in 
which  that  term  is  used  in  the  construction  of  deeds.  Staple- 
ford  V.  Brinson,  2  Ired.  L.  (N.  C.)  311.  So,  one  parcel  of  land 
itself  may  be  a  monument  to  determine  the  boundary  and  limit 
of  another.  See  Bates  v.  Ty mason,  13  Wend.  300 ;  Flagg  v. 
Thurston,  13  Pick.  145  ;  Northrop  v.  Sumney,  27  Barb.  196. 

An  artificial  boundary  is  one  erected  by  man,  and  monuments 
denoting  such  boundary  ma}^  be  referred  to  in  a  description  in  a 
deed,  although  they  do  not  exist  at  the  time  ;  provided,  that 
afterward  the,  parties,  in  good  faith  and  by  mutual  agreement, 
put  up  monuments  as  and  for  those  intended  in  the  description, 
in  which  case,  they  conclude  the  parties  as  eflfectually  as  if  they 


708  BOUNDARIES. 

had  been  in  existence  when  the  deed  was  executed.  Watermmi 
V.  Johnson,  13  Pick.  261,  267 ;  Lerned  v.  Morrill,  2  N.  H.  197 ; 
Kennebec  Purchase  v.  Tiffany,  1  Me.  219.  Natural  objects,  as 
a  rule,  being  more  lasting  and  permanent  than  artificial  ones, 
are,  on  tliat  account,  preferred  as  monuments  in  forming  bound- 
ary lines.  And  in  one  case  it  was  said  tliat  so  frail  a  witness  as 
a  stake  is  scarcely  wortliy  to  be  called  a  monument,  or  to  con- 
trol the  construction  of  a  deed.  Cox  v.  Freedley,  33  Penn.  St. 
124. 

§  2.  Public  street  or  highway.  Highways  are  regarded  in  our 
law  as  easements.  The  public  acquire  no  more  than  the  right 
of  way,  with  the  powers  and  privileges  incident  to  that  right, 
such  as  digging  the  soil  and  using  the  timber  and  other  materials 
foimd  within  the  space  of  the  road,  in  a  reasonable  manner,  for 
the  purpose  of  making  and  repairing  the  road  and  its  bridges. 
When  the  sovereign  imposes  a  public  right  of  way  upon  the 
land  of  an  individual,  the  title  of  the  former  owner  is  not  extin- 
guished ;  but  is  so  qualified,  that  it  can  only  be  enjoyed,  subject 
to  that  easement.  The  former  proprietor  still  retains  his  exclu- 
sive right  in  all  mines,  quarries,  springs  of  water,  timber,  and 
earth,  for  every  purpose  not  incompatible  with  the  public  right 
of  way.  The  person  in  whom  the  fee  of  the  road  is  may  main- 
tain trespass,  or  ejectment,  or  waste.  And,  when  the  sovereign 
chooses  to  discontinue  or  abandon  the  right  of  way,  the  entire 
and  exclusive  enjoyment  reverts  to  the  proprietor  of  the  soil. 
See,  generally,  Harrison  v.  Parlcer,  6  East,  154 ;  Good- 
title  V.  Alker,  1  Burr.  143 ;  Perley  v.  Chandler,  6  Mass. 
454 ;  West  Comngton  v.  Freking,  8  Bush  (Ky.),  121 ;  Mitchell 
V.  Bass,  33  Tex.  259 ;  Onerman  v.  May,  35  Iowa,  89  ;  Com- 
missioners, etc.,  V.  Beclcwith,  10  Kan.  603 ;  Cortelyou  v. 
Van  Brunt,  2  Johns.  357;  Ball  v.  Ball,  1  Phila.  (Penn.) 
36.  A  person  through  whose  lands  a  highway  is  laid  out 
may  convey  the  land  on  each  side,  retaining  the  fee  of  the  premi- 
ses covered  by  the  highway.  Munn  v.  Worrall,  53  N.  Y.  (8 
Sick.)  46.  And  an  owner  who  has  thus  retained  his  estate  in  the 
soil,  incumbered  by  a  highway,  has  a  right  to  sell  it,  subject  to 
that  incumbrance.  lb. ;  Jackson  v.  Hathaway,  15  Johns.  447. 
See  Peck  v.  Smith,  1  Conn.  103  ;  Oraves  v.  Amoskeag  Co.,  44  N. 
H.  462.  The  rule  of  law  seems  to  be  now  well  settled,  both  by 
the  English  and  American  authorities,  that  the  proprietors  of 
land  bounded  "on,  upon"  or  "along"  a  highway  have  prima 
facie,  ait  least,  a  fee  in  such  highway,  ad  medium  jilum  viw, 


BOUNDARIES.  709 

subject  to  the  easement.     See  Berridge  v.  Ward,  10  C.  B.  (N. 
S.)  400 ;  Simpson  v.  Dendy,  8  id.  433  ;  Holmes  v.  BelUngham, 

7  J.  Scott  (N.  S.),  329,  336;  Chatham  v.  Brainerd,  11  Conn. 
60 ;  Buckiiam  v.  Buckiiam,  12  Me.  463  ;  Marsh  v.  Burt,  34  Vt. 
289  ;  Dunham  v.  Williams,  37  N.  Y.  (10  Tiff.)  251 ;  Gove  v. 
White,  20  Wis.  432 ;  Rice  v.  TForcd^i^er,  11  Gray  (Mass.),  283 ; 
Banks  v.  Ogden,  2  Wall.  57,  68.  And  where  land  is  sold  border- 
ing on  a  highway,  the  mere  fact  that  it  is  not  so  described  in  the 
deed  will  not  vary  the  construction.  The  grantee  takes  the  fee 
to  the  middle  of  the  highway,  on  the  line  of  which  the  land  is 
situated.    Stark  v.  Coffin,  105  Mass.  328 ;  Hawesoille  v.  Lander, 

8  Bush  (Ky.),  679  ;  Gear  v.  Barnum,  37  Conn.  229.  And  the 
same  principles  applicable  to  boundaries  on  a  public  road  apply 
also  to  those  on  a  private  road  or  way.  Smith  v.  Hoioden,  14 
C.  B.  (N.  S.)  398  ;  Holmes  v.  Bellingham,  7  id.  328,  336  ;  Winsloio 
V.  King,  14  Gfray  (Mass.),  320.  But  see  State  v.  Clements,  32  Me. 
279.  So,  a  conveyance  bounded  upon  a  street  in  a  city  or  vil- 
lage would  ordinarily  include  the  soil  to  the  center  ;  but  when 
the  road-bed  belongs  to  the  government  and  not  to  the  abutters, 
the  deed  carries  title  only  to  the  roadside.  Dunham  v.  Wil- 
liams, 37  N.  Y.  (10  Tiff.)  251 ;  Falls  v.  Beis,  74  Penn.  St.  439  ; 
White  V.  Godfrey,  97  Mass.  472 ;  Bissell  v.  New  York  Central 
R.  R.  Co.,  23  N.  Y.  (9  Smith)  61.  See  Seventeenth  Street,  1  Wend. 
202;  Grinell  v.  Kirtland,  48  How.  (N.  Y.)  19.  And  where  a 
deed  of  land  describes  it  as  bounded  on  a  road,  and  sets  forth 
metes  and  bounds  which  plainly  exclude  the  road,  no  part  of 
the  soil  and  freehold  passes  by  the  grant.  Wetmore  v.  Law,  22 
How.  130;  S.  C,  34  Barb.  515;  Tyler  v.  Hammond,  11  Pick. 
(Mass.)  193 ;  Jackson  v.  Hathaway,  15  Johns.  447 ;  Hughes  v. 
Providence,  etc.,  R.  R.,  2  R.  I.  508 ;  Palmer  v.  Dougherty,  33 
Me.  507 ;  Cole  v.  Haynes,  22  Yt.  558 ;  Hoboken  Land  Co.  v.  Ker- 
rigan, 30  N.  J.  (Law)  16.  But  where  a  grant  described  the  land 
as  "beginning  on  the  westerly  side  of  the  country  road  ;  thence 
running  northerly,  touching  the  said  westerly  side  of  said  road, 
forty  rods  ;"  this  description  was  held  to  be  insufficient  to  con- 
trol the  rule  of  law  which  extends  the  title  to  the  center  of  the 
road.    Johnson  v.  Anderson,  18  Me.  76. 

A  highway  referred  to  in  a  deed  as  a  boundary  must  be  under- 
stood to  mean  the  highway  as  it  practically  exists,  rather  than 
as  it  was  originally  located,  in  case  there  has  been  any  change  in 
this  respect.  Falls  Village,  etc.,  Co.  v.  Tibhetts,  31  Conn.  165  ; 
Tihhetts  v.  Estes,  52  Me.  566.     See  Hunt  v.  Francis,  5  Ind.  302. 


710  BOUNDARIES. 

And  where  there  is  no  competent  record  evidence  of  the  laying 
out  of  a  highway,  and  its  boundaries  cannot  be  accurately  ascer- 
tained, evidence  of  the  existence  of  a  fence  substantially  in  the 
same  place  for  more  than  twenty  years,  upon  the  side  of  the 
highway,  is  competent  for  the  purpose  of  fixing  the  boundary 
line.  Petting  ill  v.  Porter,  3  Allen  (Mass.),  349;  Hallenheck  v. 
Rowley,  8  id.  475. 

§  3.  Sea  shore.  The  doctrine  of  the  common  law  as  to  what 
constitutes  tlie  shore  of  the  sea  is,  that  it  is  the  space  between 
the  ordinary  high- water  mark  and  low- water  mark.  Quits  v. 
Hussey,  15  Me.  237 ;  Storer  v.  Freeman,  6  Mass.  439 ;  TescJie- 
macJier  v.  Thompson,  18  Cal.  21;  City  of  GaUeston  v.  Menard, 
23  Tex.  349;  Martin  \.  OBrien,  34  Miss.  21.  The  terms 
"beach,"  "strand,"  and  "flats,"  are  often  used  as  identical 
with  "shore."  Niles  v.  Patch,  13  Gray  (Mass.),  254;  Fast 
Hampton  v.  Kirli,  6  Hun  (N.  Y.),  257  ;  Hodge  v.  Boothhy,  48 
Me.  71 ;  Dana  v.  Jackson  Street  Wharf,  31  Cal.  120.  All  the 
shore  below  ordinary  high- water  mark  belongs  to  the  sovereign 
power  of  the  State.  Commonwealth  v.  Charlestown,  1  Pick. 
(Mass.)  180 ;  Trustees  of  Brookhaven  v.  Strong,  60  N.  Y.  (15  Sick.) 
56,  Q5  ;  Cortelyou  v.  Van  Brundt,  2  Johns.  362 ;  Martin  v. 
Waddell,  16  Pet.  367.  Hence,  where  lands  are  described  as 
extending  to  the  sea  shore,  and  are  bounded  by  it,  the  shore 
itself  will  not  be  considered  as  falling  within  the  boundaries. 
Littlefield  v.  Maxwell,  31  Me.  134 ;  Niles  v.  Patch,  13  Gray 
(Mass.),  257  ;  Storer  v.  Freeman,  6  Mass.  439.  But  in  Massa- 
chusetts, the  rule  of  the  common  law  was  changed  by  the  colo- 
nial ordinance  of  1641,  and  the  owner  of  lands  bounded  on  the 
sea  or  salt  water  may  hold  to  low-water  mark,  so  that  he  does 
not  hold  more  than  one  hundred  rods  below  high-water  mark, 
lb.;  Sale  v.  Pratt,  19  Pick.  (Mass.)  191.  And  it  is  held,  that  the 
grant  of  a  wharf  may  carry  the  flats  in  front  of  it.  Common- 
wealth V.  Alger,  7  Gush.  (Mass.)  66  ;  Doane  v.  Broad  St.  Asso- 
ciation, 6  Mass.  332.  See  Palmer  v.  Hicks,  6  Johns.  133  ;  Hodge 
V.  Boothhy,  48  Me.  71;  Lovingston  v.  County  of  St.  Clair,  64 
111.  56;  S.  C.,  16  Am.  R.  524  ;  Trustees  of  Bookhaven  v.  Strong, 
60  N.  Y.  (15  Sick.)  56.  Whether  the  ordinance  of  1641  extends 
to  New  Hampshire  has  been  questioned.  See  Nudd  v.  Hohhs, 
17  N.  H.  527.  As  an  incident  to  the  ownership  of  the  flats, 
sea-weed  cast  up  by  the  waves  upon  them  or  upon  the  shore, 
prima  facie,  belongs  as  an  appurtenant  to  the  owner  of  the 
soil.    Phillips  v.  Rhodes,  7  Mete.  (Mass.)  322  ;  East  Hamptony. 


BOUNDARIES.  711 

Kirk,  6  Hun  (N.  Y.),  257,  260.  And  the  right  to  take  it  may  be  tlie 
subject  of  sale  and  conveyance,  separate  from  the  soil  itself. 
mil  V.  Lord,  48  Me.  83,  95. 

It  has  often  been  decided  that  the  holders  of  land  hold  to  low- 
water  mark,  notwithstanding  they  are  bounded  "b}^  stakes  and 
stones  on  the  bank  of  the  river."  See  Hart  v.  Hill,  1  Whart. 
(Penn.)  131;  Elder  v.  Burns,  6  Humph.  (Tenn.)  358;  Hogan 
V.  McMurtry,  5  Dana  (Ky.),  181;  2  Smith's  Lead.  Cas.166  (218). 

§.  4  Lakes  or  rivers.  The  bank  of  a  stream  is  the  continuous 
margin  where  vegetation  ceases  ;  and  the  shore  is  the  pebbly, 
sandy,  or  rocky  space  between  that  and  low-water  mark.  Mc- 
Cullough  V.  Wainriglit,  14  Penn.  St.  171.  The  well-established 
rule  of  law  is,  that  where  lands  are  bounded  by  a  stream  or 
river  not  navigable,  or  above  tide- water,  the  grantee  takes  usque 
filivm  aquoe,  unless  the  stream  or  river  is  expressly  excluded 
from  the  grant  by  the  terms  of  the  deed.  Kingsland  v.  Chitten- 
den, 6  Lans.  (N.  Y.)  15 ;  Demeyer  v.  Legg,  18  Barb.  14 ;  Cam- 
-den  V.  Creel,  4  W.  Ya.  365  ;  State  v.  Oihnanton,  9  N.  H.  461 ; 
Hatch  V.  D wight,  17  Mass.  239,  298  ;  Railroad  Company  v. 
Schurmeir,  7  AYall.  272,  287  ;  Arnold  v.  Elmore,  16  Wis.  509. 
See  Tliomas  v.  Hatch,  3  Sumn.  170.  Thus,  as  illustrations  of  the 
rule  as  stated,  it  has  been  held,  that  where  the  line  ran  "  to  a 
stake  standing  on  the  east  bank,  etc.,  thence  down  the  river,  etc., 
it  extended  to  the  thread  of  the  river.  Luce  v.  Carley,  24  Wend. 
451.  And  see  Lunt  v.  Holland,  14  Mass.  150.  So  where  the 
boundary  was  described  as  "easterly  on  a  creek,  and  down  said 
creek  to  a  small  butternut  tree,  which  is  the  north-east  corner  of 
said  lot,"  it  was  held  that  the  true  corner  was  at  the  center  of 
the  stream  opposite  this  tree.  Newton  v.  Eddy,  23  Yt.  319. 
See  also  Cold  Springs  Iron  Works  v.  Tolland,  9  Cush.  (Mass.) 
492  ;  Brown  v.  Chadbourne,  31  Me.  9.  But  a  line  running  to  G. 
river,  thence  "along  the  shore  of  said  river  to,"  etc.,  was  held 
to  exclude  the  river.  Child  v.  Starr,  4  Hill  (N.  Y.),  369.  See 
Yates  V.  Van  De  Bogert,  56  N.  Y.  (11  Sick.)  526,  531 ;  Bradford 
V.  Cressey,  45  Me.  9.  And  where  one  corner  was  a  stake,  etc., 
on  the  west  bank  of  the  river,  and  then  around  to  another  stake 
on  the  same  bank,  "  thence  running  on  the  western  bank  of  said 
river  to  high  water  to  the  first  bound,"  the  river  was  held  to  be 
excluded.  Dunlap  v.  Stetson,  4  Mason,  349.  The  boundary 
line  to  lands  bordering  on  rivers  and  lakes  follows  the  meander- 
ing of  the  stream,  and  when  the  length  of  it  is  given,  it  is  ascer- 
tained by  reducing  the  meandering  lines  to  a  straight  one.   Oran 


712  BOUNDARIES. 

ger  v.  Swart,  1  Woolw.  88 ;  CalJc  v.  Stribhing,  1  Bibb  (Ky.), 
122 ;  Hlclcs  v.  Coleman,  25  Cal.  142. 

It  lias  been  held  that  where  lands  are  bounded  in  a  deed  of 
conveyance,  by  an  inland  lake,  five  miles  long,  but  less  than  a 
mile  in  width,  that  the  title  of  the  grantee  extends  usque  ad 
medium  filum  aquce.  Ledyard  v.  Ten  Eyck,  36  Barb.  102.  But 
generally  this  rule  is  inapplicable  to  the  lakes  and  other  large 
natural  collections  of  fresh  water  in  this  country.  See  Hatliorn 
V.  Stinson,  10  Me.  238  ;  Canal  Commissioners,  etc.  v.  People,  5 
Wend.  423.  In  New  Hampshire  it  was  held  that  where  a  grant 
runs  to,  and  is  bounded  upon  a  lake  or  large  body  of  standing 
fresh  water,  the  grant  extends  only  to  the  water's  edge.  State  v. 
Gilmanton,  9  N.  H.  461.  And  see  Dillingham  v.  Smith,  3  Me. 
370  ;  Fletcher  y.  Phelps,  28  Vt.  257.  Riparian  owners  on  Lake 
Michigan  own  to  the  line  where  the  water  usually  stands  when 
unaffected  by  any  disturbing  cause.  Seaman  v.  Smith,  24  111. 
521.  Proprietors  of  land  lying  on  Lake  Champlain  own  to  low- 
water  mark,  unless  it  is  otherwise  expressed  in  the  grants  ;  sub- 
ject, however,  to  a  servitude  to  the  public,  for  the  purposes  of 
navigation,  up  to  high-water  mark.  Champlain  &  St.  Lawrence 
R.  R.  Co.  V.  Valentine,  19  Barb.  484.  And  it  is  stated  to  be  a 
general  rule,  that  a  boundary  upon  a  natural  pond  or  lake  car- 
ries title,  not  to  its  center,  but  only  to  low-water  mark.  Wheeler 
V.  Spinola,  54  N.  Y.  (9  Sick.)  377 ;  Waterman  v.  Johnson,  13 
Pick.  (Mass.)  261.  But  the  rule  as  to  an  artificial  pond  is  other- 
wise ;  a  boundary  thereon  generally,  in  the  absence  of  other  con- 
trolling facts,  carries  title  to  the  center.  lb.;  West  Roxbury  v. 
Stoddard,  7  Allen  (Mass.),  167  ;  Wood  v.  Kelley,  30  Me.  47.  It 
has  been  held  by  the  Supreme  Court  of  the  United  States,  that 
the  riparian  owner  on  the  great  lakes,  as  well  as  on  tide- waters, 
has,  by  grant,  statute,  or  immemorial  usage,  the  right  to  build 
out  such  convenient  wharves  as  do  not  obstruct  the  public  rights 
•of  navigation.     Button  v.  Strong,  1  Black,  23. 

The  rule  which  governs  the  question  of  boundary  in  the  case 
of  land  bordering  on  the  sea,  or  on  an  arm  of  the  sea,  is  also 
applicable  to  land  bounding  on  a  navigable  river.  And  the  gen- 
eral rule  of  the  common  law  is  that  if  the  boundary  be  a  navi- 
gable river,  that  is,  one  in  which  the  tide  ebbs  and  flows,  the 
land  extends  only  to  ordinary  high- water  mark,  and  high-water 
mark  \^  prima  facie  the  boundary  line.  Middleton  v.  Pritcliard, 
3  Scam.  (111.)  510  ;  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  525 ; 
East  Haoen  v.  Hemingway,  7  Conn.  186  ;  Canal  Commissioners 


BOUNDARIES.  713 

V.  The  People,  5  Wend.  423,  446  ;  Wheeler  v.  Spinola,  54  N.  Y. 
(9  Sick.)  377,  385. 

§  5.  Other  boundaries.  A  tree,  standing  directly  upon  the 
line  between  adjoining  owners,  so  that  the  line  passes  through 
it,  is  the  common  property  of  both  parties,  whether  marked  or 
not.  Hoffman  v.  Armstrong,  46  Barb.  337,  339 ;  48  N.  Y.  (3 
Sick.)  201  ;  Oriffm  v.  Blxby,  12  N.  H.  454 ;  and  trespass  will 
lie,  if  one  cuts  and  destroys  it  without  the  consent  of  the  other, 
lb.;  Dubois  v.  Beaver,  25  N.  Y.  (1 1  Smith)  123.  But  see  Gibson 
V.  Vaughn,  2  Bailey  (S.  C),  389.  Where  the  boundary  line 
between  two  adjoining  proprietors  is  a  ditch  or  wall,  and  one  of 
the  owners  conveys  land  bounding  it  in  the  conveyance,  upon 
the  ditch  or  wall,  the  presumption  is,  that  the  grantee  takes  to 
the  center,  as  in  the  case  of  land  conveyed,  bounded  on  an  un- 
navigable  river,  or  a  highway.  Warner  v.  Southworth,  6  Conn. 
471 ;  City  of  Boston  v.  Richardson,  13  Allen  (Mass.),  146.  In 
case  of  a  boundary  on  party  walls,  the  presumption  is,  that  the 
wall  and  the  land  upon  which  it  stands  belong  in  common  to  the 
owners  of  the  adjoining  premises.  Cubitt  v.  Porter,  8  Barn.  & 
C.  257;  Hoffman  v.  Armstrong,  46  Barb.  337,  339;  48  N.  Y. 
(3  Sick.)  201.  The  common  boundary  is  the  property  of  both, 
and  where  a  fixture  is  put  on  it  by  the  labor  of  both,  they  are,  as 
to  it,  tenants  in  common.  lb.  Thus,  a  fence  erected  on  the  line 
is  a  fixture,  in  which  the  adjoining  owners  have  an  undivided 
interest ;  Gibson  v.  Vaughn,  2  Bailey  (S.  C),  389  ;  and  for  the 
removal  of  which  it  is  held,  that  neither  can  maintain  trespass 
against  the  other.  lb.  But  see  Dubois  v.  Beaver,  25  N.  Y.  (11 
Smith)  123 ;  Griffin  v.  Bixby,  12  N.  H.  454. 

As  to  the  ownership  of  islands  formed  in  rivers  tlie  rule  is 
stated  to  be,  that  where  an  island  is  so  formed  in  the  bed  of  a 
river  not  navigable,  as  to  divide  the  channel  and  lie  partly  on 
each  side  of  the  thread  of  the  river,  it  will  be  divided  between 
the  riparian  proprietors  on  the  opposite  sides  of  the  river  according 
to  the  original  thread  of  the  river.  InJiabitants  of  Deerfield  v. 
Arms,  17  Pick.  (Mass.)  41 ;  Trustees,  etc.,  v.  Diclcinson,  9  Cush. 
(Mass.)  548.  See  also  Bardioell  v.  Ames,  22  Pick.  333  ;  McCul- 
lough  V.  Wall,  4  Rich.  (S.  C.)  68 ;  CrQolcer  v.  Bragg,  10  Wend. 
260. 

§  6.  Marshaling  boundaries.  In  locating  lands,  boundaries 
are  usually  marshaled  in  the  following  order:  First.  Natural 
boundaries.  Second.  Artificial  marks.  Third.  Adjacent  bound- 
aries.   Fourth.  Course  and  distance.     Fulioood  v.  Graham,  1 

Vol.  L  — 90 


714  BOUNDARIES. 

Rich.  (S.  C.)  491.  Neither  rule,  however,  occupies  an  inflexible 
position  ;  for  when  it  is  plain  that  there  is  a  mistake,  an  inferior 
means  of  location  may  control  a  higher.  lb. ;  Loring  v.  Norton^ 
8  Me.  61;  Hay  lies  v.  Young  ^  '6^  id.  557;  Newliall  v.  Ireson, 
8  Cush.  (Mass.)  595 ;  Nelson  v.  Hall,  1  McLean,  518. 

§  7.  Construction  of  grants  in  respect  to  boundary.  In  giving 
construction  to  the  description  of  the  premises  in  a  deed,  the 
intent  of  the  parties,  if  by  any  possibility  it  can  be  gathered 
from  the  language  employed,  will  be  efl'ectuated.  A  general 
rule  of  construction  as  it  regards  boundary,  and  one  that  is  well 
sustained  by  the  authorities,  is  thus  stated  :  Whenever  land  is 
described  as  bounded  by  other  land,  or  by  a  building  or  structure, 
the  name  of  which,  according  to  its  legal  and  ordinary  meaning, 
includes  the  title  in  the  land  of  which  it  has  been  made  a  part, 
as  a  house,  a  wall,  a  wharf  or  the  like,  the  side  of  the  land  or 
structure  referred  to  as  a  boundary  is  the  limit  of  the  grant ;  but 
where  the  boundary  line  is  simply  by  an  object,  whether  natural 
or  artificial,  the  name  of  which  is  used  in  ordinary  speech  as 
defining  a  boundary,  and  not  as  describing  a  title  in  fee,  and 
which  does  not  in  its  description  or  nature  include  the  earth  as 
far  down  as  the  grantor  owns,  and  yet  which  has  width,  as  in 
the  case  of  a  way,  a  river,  a  ditch,  a  wall,  a  fence,  a  tree  or  a 
stake,  the  center  of  the  thing  so  running  over  or  standing  on  the 
land  is  the  line  of  boundary  of  the  lot  granted.  City  of  Boston 
V.  Richardson,  13  Allen  (Mass.),  144, 157.  And  see  Lord  v.  Com- 
missioners of  Sidney,  12  Moore's  P.  C.  C.  473,  497  ;  S.  C,  7  W. 
R.  267 ;  see,  also,  the  preceding  sections  of  this  article  and  the 
cases  cited. 

Where  the  boundaries  of  land  are  fixed,  known  and  unques- 
tionable monuments,  although  neither  courses,  nor  distances,  nor 
the  computed  contents  correspond,  the  monuments  must  govern. 
Per  nam  v.  Weed,  6  Mass.  131 ;  Alshire  v.  Hulse,  5  Ohio,  534 ; 
Smith  V.  Dodge,  2  N.  H.  303  ;  Jackson  v.  J^rost,  5  Cow.  346 ; 
Yates  V.  Van  De  Bogert,  56  N.  Y.  (11  Sick.)  526 ;  Baxter  v.  Emit, 
7  T.  B.  Monr.  (Ky.)  333 ;  Call  v.  Barker,  12  Me.  325  ;  Dogaii  v. 
Seekright,  4  Hen.  &  M.  (Va.)  125 ;  Frederick  v.  Brulard,  7  La. 
Ann.  655  ;  West  v.  Shaw,  67  N.  C.  489  ;  Welder  v.  Hunt,  34  Tex. 
44  ;  Preston  v.  Bowmar,  6  Wheat.  580  ;  Riley  v.  Qriffin,  16  Ga. 
141 ;  Moreland  v.  Page,  2  Iowa,  139  ;  Keenan  v.  Cavanaugh, 
44  Vt.  268.  If  there  are  no  monuments,  the  land  must  be 
bounded  by  the  courses  and  distances  named  in  tlie  patent  or 
deed.    Hammond  v.  Ridgley,  5  Harr.  &.J.  (Md.)  254;  Cherry 


BOUNDARIES.  715 

V.  Shade,  3  Mnrph.  (N.  C.)  82  ;  CMnoweth  v.  HasJcell,  8  Pet.  96  ; 
Dreio  V.  8wlft,  46  N.  Y.  (1  Sick.)  204.  And  the  same  is  true, 
where  monuments  that  once  existed  are  gone,  and.  their  places 
cannot  be  proved.  Preston  v.  Boiomar,  2  Bibb  (Ky.),  493 ; 
Bagley  v.  Morrill,  46  Vt.  94.  Or  where  monuments  are  named, 
but  are  indistinguishable  from  others  of  the  same  kind.  Chitio- 
wetli  V.  Haskell,  3  Pet.  96  ;  Brow  fling  v.  Atkinson,  37  Tex.  633. 
The  reason  given  why  monuments  are  to  control  the  courses 
and  distances  in  a  deed  is,  that  the  former  are  less  liable  to  mis- 
takes. Dams  V.  Rainsford,  17  Mass.  210.  Or,  the  rule  is  based 
upon  the  legal  presumption,  that  all  grants  and  conveyances  are 
made  with  reference  to  an  actual  view  of  the  premises  by  the 
parties  thereto.  Raynor  v.  Timerson,  46  Barb.  518.  See  Smith 
V.  Chatham,  14  Tex.  322  ;  Harvey  v.  Mitchell,  11  Post.  (N.  H.) 
57o.  Where  certain  monuments  are  referred  to  in  a  description, 
which  do  not  exist  at  the  time,. and  afterward  the  parties,  in  good 
faith  and  by  mutual  agreemej^t,  put  up  monuments  as  and  for 
those  intended  in  the  description,  sucli  monuments  will  be  deemed 
the  monuments  intended  in  the  description.  But  the  placing 
of  these  monuments  and  the  consent  and  agreement  of  the 
parties  in  relation  thereto  must  be  proved  by  parol.  Waterman 
V,  Johnson,  13  Pick.  (Mass.)  261,  267.  So  it  is  competent  to  show 
by  parol  evidence,  that  certain  monuments  actually  existing  at 
the  time  were  the  monuments  intended,  where  there  are  two  or 
more  which  equally  well  answer  the  description.  Thus,  if  the 
deed  describes  a  line  as  running  to  a  pine  tree  marked,  and 
in  applying  the  deed  to  the  land,  there  are  found  two  pine  trees 
marked,  either  of  which  answers  the  general  description,  parol 
evidence  would  be  admissible  to  show  which  was  intended.  lb. 
And  see  Frost  v.  Spaulding,  19  Pick.  445,  447  ;  Cotton  v.  Sea'oey, 
22  Cal.  496  ;  Middleton  v.  Perry,  2  Bay  (S.  C),  539.  The  ques- 
tion as  to  what  the  boundaries  of  a  given  piece  of  land  which 
has  been  conveyed  by  deed  are,  is  for  the  court;  where  these 
boundaries  are,  is  a  question  for  the  jury.  Abbott  v.  Abbott,  51 
Me.  675, 581 ;  Clark  v.  Wagoner,  70  N.  C.  706. 

Some  miscellaneous  illustrations  of  construction  as  to  boun- 
dary are  here  given.  Where  the  calls  in  a  conveyance  of  land 
are  for  two  corners  at,  in,  or  on  a  stream  or  its  bank,  and  there 
is  an  intermediate  line  extending  from  one  such  corner  to  the 
other,  the  stream  is  the  boundary,  unless  there  is  something  which 
excludes  the  operation  of  this  rule  by  showing  that  the  intention 
of  the  parties  was  otherwise.  Lovingston  v.  County  of  St.  Clair, 


716  BOUNDARIES. 

18  Wall.  628  ;  16  Am.  R.  524,  note;  affirming  S.  C,  64  111.  m-,  16 
Am.  R.  516.  Where  a  deed  described  the  premises  conveyed  as 
bounded  by  a  line  beginning  at  a  point  "on  the  bank"  of  a 
stream,  thence  going  by  courses  and  distances  around  the  track 
''  to  the  said  stream,  and  down  the  stream  as  it  winds  and  turns, 
to  the  place  of  beginning  ;"  it  was  held  that  the  words  "to  the 
said  stream"  must  be  construed  to  mean  to  the  bank  of  the 
stream,  and  not  to  the  center.  Bdbcock  v.  Titter^  1  Abb.  Ct.  App. ' 
(N.  Y.)  27.  A  grant  bounding  on  "  the  bank"  of  a  creek  does 
not  convey  the  land  to  the  center  of  the  creek,  but  only  to  low- 
water  mark.  Halsey  v.  McCormick,  13  N.  Y.  (3  Kern.)  296  ; 
Yates  v.  Yan  DeBogert,  56  N.  Y.  (11  Sick.)  526.  See  also  Lamb 
V.  Ricketts,  11  Ohio,  311 ;  McCullock  v.  Aten,  2  id.  309.  A  deed 
which  calls  for  "  the  middle  of  a  creek  in  its  natural  channel 
when  the  pond  is  exhausted,"  makes  a  shifting  boundary,  and 
not  a  fixed  land- mark.  Primm  v.  Walker,  38  Mo.  94.  A  grant" 
of  "all  that  certain  stream  and  pond  of  water  and  saw-mill  there- 
on to  belonging,  situate,"  etc.,  does  not  convey  to  the  grantee 
the  fee  of  the  land  covered  by  the  stream  and  pond.  Nostrand 
V.  Durland,  21  Barb.  478.  And  see  Bartholomew  v.  Edwards,  1 
Houst.  (Del.)  17.  The  owner  of  adjoining  lands,  who  is  also 
owner  of  the  bed  of  a  creek,  may  grant  and  convey  the  bed  of  the 
creek  separate  from  the  land  which  bounds  it.  Den  v.  Wriglit, 
Pet.  (C.  C.)  64.  A  deed  of  land  describing  the  granted  premises 
as  "lying  and  being  on  the  west  side"  of  a  river,  which  is  not 
navigable,  conveys  the  title  to  an  island  in  the  river,  which  lies 
to  the  west  of  the  main  channel.  Stanford  v.  Mangin,  30  Ga. 
355.  And  a  deed  of  land  bounded  "  east  by  the  pond,"  conveys 
the  land  to  the  center  of  the  original  stream  of  an  artificial  pond, 
which  was  created  by  a  dam  across  the  stream.  Mill  River,  etc., 
Co.  V.  Smith,  34  Conn.  462.  A  call  "up  the  creek"  means,  ordi- 
narily, a  line  to  run  with  the  creek.  Buckley  v.  Blackioell,  10 
Ohio,  508.  And  the  line  must  run  through  the  middle  of  the 
creek,  according  to  its  turnings  and  windings.  Jackson  v. 
Louw,  12  Johns.  252  ;  Jones  v.  Pettibone,  2  Wis.  308. 

The  rule  that  a  grant  of  land,  bounded  on  a  road  or  creek,  car- 
ries the  rights  of  the  grantee  to  the  center  thereof,  applies  as  well  to 
city  lots  as  to  farms  in  the  country.  Hammond  v.  McLaughlin, 
1  Sandf.  (N.  Y.)  323.  The  question,  whether,  in  conveyance  of 
land  abutting  upon  a  highway,  the  highway  dpes  or  does  not 
pass  to  the  grantee,  is,  in  all  cases,  a  matter  of  construction  and 
intention  merely,  to  be  determined  from  a  consideration  of  the 


BOUNDARIES.  717 

language  used  by  the  parties  and  such  surrounding  circum- 
stances as  are  proper  to  be  considered  in  ascertaining  their 
intent.  The  presumption  in  sucli  cases  is,  however,  tliat  the 
parties  did  intend  t"o  include  the  highway,  and  the  burden 
of  proof  is  upon  the  party  who  asserts  that  the  contrary  was 
intended.  Buck  v.  Squires,  22  Yt.  484  ;  Kingsland  v.  Chitten- 
den, 6  Lans.  (N.  Y.)  15;  61  N.  Y.  (16  Sick.)  618.  If  a  deed  of 
land  bounds  the  grantee,  upon  or  by  "  the  side  of  a  highway," 
these  words  are  presumed  to  exclude  the  highway,  especially  if 
this  construction  be  consistent  with  the  circumstances  and  sub- 
ject-matter of  the  grant.  Anderson  v.  James,  4  Robt.  (N.  Y.) 
35  ;  Fearing  v.  Irwin,  4  Daly  (N.  Y.),  885 ;  55  N.  Y.  (10  Sick.) 
486  ;  Hughes  v.  Providence,  etc.,  R.  R.  Co.,  2  R.  I.  508 ;  Hohoken 
Land,  etc.,  Co.  v.  Kerigan,  17  N.  J.  Eq.  13. 

A  conveyance  of  land  "bounded  on  "  a  private  way  leading 
to  the  grantor's  dwelling-house  carries  the  fee  to  the  center  of 
the  way.  Fisher  v.  Smith,  9  Gray  (Mass.),  441.  But,  where  the 
proprietor  of  grounds  laid  out  for  use  as  a  public  cemetery 
makes  a  conveyance  of  a  burial  lot,  no  interest  in  the  alleys 
which  separate  it  from  other  lots,  except  a  right  of  way,  passes 
to  the  purchaser,  unless  particularly  expressed  in  the  deed  ;  the 
presumption  being  of  a  reservation,  rather  than  a  grant.  Sey- 
mour V.  Page,  33  Conn.  61. 

It  has  been  held  by  the  supreme  court  of  the  State  of  Maine, 
that  the  line  of  a  parcel  of  land  to  run  parallel  with  and  at  a 
specified  distance  from  the  south  side  of  a  building  should  be 
measured  from  the  corner  board  of  that  side,  and  not  from  the 
outer  edge  of  tlie  eaves.  Proprietors,  etc.  v.  Machias  Hotel 
Company,  51  Me.  413.  And  by  the  same  court  it  is  held,  that 
the  word  "from"  an  object,  or  "to"  an  object,  used  in  a  deed 
excludes  the  terminus  referred  to.  Bonney  v.  Morrill,  52  id. 
252. 

Where  the  question  involved  is,  whether  a  boundary  described 
in  a  deed  was  intended  to  be  a  mere  paper  street,  as  laid  down 
on  plat,  or  an  actual  highway,  known  as  such,  and  not  by  any 
name  appearing  on  the  plat,  the  use  of  the  expression  "public 
road  "  as  that  boundary  in  the  description  in  the  deed,  is  construed 
to  indicate  the  latter  rather  than  the  former;  and' indicates  an 
intent  to  carry  the  title  to  the  middle  of  the  road.  Purkiss  v. 
Benson,  28  Mich.  538. 

§  8.  Effect  of  acquiescence  in  boundary  line.  A  line  may  be 
established,  by  acquiescence  of  the  parties,  that  is  different  from 


718  BOUNDARIES. 

the  true  line.  Smith  v.  McAllister,  14  Barb.  434;  Taught  v. 
Holway,  50  Me.  24  ;  Davis  v.  Judge,  46  Vt.  655.  And  the  fol- 
lowing periods  of  time  of  acquiescence  have  been  held  sufficient 
to  fix  the  boundaries  :  Fifteen  years,  Spauldlng  v.  Warren, 
25  Vt.  316  ;  Davis  v.  Judge,  46  id.  655 ;  sixteen  years,  Goluinhet 
V.  Pachees,  48  Cal.  395 ;  twenty  years.  Corning  v.  Troy  Iron 
and  Nail  Factory,  44  N.  Y.  (5  Hand)  577 ;  Minor  v.  Mayor,  etc., 
of  New  York,  5  Jones  &  Sp.  171  ;  Ball  v.  Cox,  7  Ind.  453  ;  Car- 
roioay  v.  Chacey,  2  Jones'  L.  (N.  C.)  170  ;  Ooyle  v.  Gleary,  116 
Mass.  208  ;  twenty-five  years,  Savage  v.  Foy,  7  La.  Ann.  573  ; 
thirty  years,  Chew  v.  Morton,  10  Watts  (Penn.),  321 ;  forty  years, 
Baldwin  v.  Brown,  16  N.  Y.  (2  Smith)  359  ;  Pierson  v.  Mosher, 
30  Barb.  81.  And  see"  Terry  v.  Chandler,  id.  354  ;  Gilchrist  v. 
M'Gee,  9  Yerg.  (Tenn.)  455  ;  Bolton  v.  Lann.  16  Tex.  96  ;  Rat- 
cliffe  V.  C'ar^/,  4  Abb.  Ct.  App.  (N.  Y.)  4  ;  Prm  v.  Raboieau,  56 
Mo.  407 ;  >S?7^^Y^  v.  McNamara,  4  Lans.  (N.  Y.)  169  ;  Mc Arthur  v. 
Henry,  35  Tex.  801 ;  Hathaway  v.  Evans,  108  Mass.  267. 

Wliere  the  channel  of  a  river  is  the  boundary  between  States, 
the  sudden  changing  of  it  by  artificial  means  does  not  affect  the 
boundary  ;  nor  can  State  boundaries  be  changed  by  the  acquiesc- 
ence of  towns,  or  town  authorities.     State  v.  Young,  46  Vt.  565. 

§  9.  Special  agreements  as  to  boundary  line.  It  is  a  well-settled 
doctrine  that  the  courts  will  not  disturb  parol  agreement  or  long 
acquiescence  in  a  boundary  line,  but  will  encourage  such  settle- 
ments of  disputed,  conflicting,  or  doubtful  boundaries,  as  a  means 
of  suppressing  spiteful  and  vexatious  litigation.  Wakefield  v. 
Ross,o  Mass.  16 ;  Mc  Arthur  v.  Henry,  35  Tex.  801.  Such  agree- 
ments are  not  within  the  statute  of  frauds,  requiring  agreements 
in  relation  to  real  estate  to  be  in  writing.  Kincaid  v.  Dormey, 
47  Mo.  337  ;  Kellum  v.  Smith,  65  Penn.  St.  86  ;  Orr  v.  Hadley,  36 
N.  H.  575.  And  the  doctrine  is  held  to  apply  even  where  one  of 
the  parties  is  only  a  settler  upon  public  land.  Thus,  a  proprietor 
who  points  out  to  a  settler  on  land  adjoining  his  own,  a  line  as 
the  true  boundary,  acquiescing  and  assisting  him  in  a  settlement 
and  improvements  thereon,  is  thereby  estopped  from  afterward 
asserting  his  claim  to  the  land  covered  by  the  improvements, 
though  a  subsequent  survey  proved  it  to  be  his  own  land.  Jor- 
don  v.  Deaton,  23  Ark.  704.  So,  it  is  held,  that  where  there  has 
been  an  honest  difficulty  in  determining  the  lines  between  two 
neighboring  proprietors,  and  they  have  actually  agreed  by  parol 
upon  a  certain  boundary  as  the  true  one,  and  have  occupied 
accordingly  with  visible  monuments  or  divisions,  the  agreement 


BOUNDARIES.  719 

long  acquiesced  in  will  not  be  disturbed,  although  the  time  has 
not  been  suiRcient  to  establish  an  adverse  possession.  Smith  v. 
Hamilton,  20  Mich.  433.  See  Corning  v.  Troy,  etc.,  Factory,  44 
N.  y.  (5  Hand)  577  ;  Reed  v.  McCourt,  41  N.  Y.  (2  Hand)  435. 
And  even  without  any  agreement  more  than  is  implied  from  their 
acts,  if  two  persons  trace  their  dividing  line,  and  both  recogniz- 
ing it  as  such,  one  goes  forward  with  the  knowledge  and  acquiesc- 
ence of  the  other,  and  makes  valuable  improvements,  so  valua- 
ble as  to  work  great  injury  to  the  party  making  them  if  the  line 
be  disturbed,  the  other  will  be  estopped  from  afterward  alleging 
such  mistake  as  shall  deprive  the  builder  of  his  improvements. 
Dolde  V.  Yodicka,  49  Mo.  98  ;  Majors  v.  Rice,  57  id.  384.  See  also 
Palmer  v.  Anderson,  63  N.  C.  365  ;  Abbott  v.  Abbott,  51  Me.  575 ; 
Laverty  v.  Moore,  32  Barb.  347  ;  Wilson  v.  Hudson,  8  Yerg. 
(Tenn.)  398  ;  Boyd  v.  Graves  4  Wheat.  513.  So,  where  a  person 
has  sold  land  up  to  a  certain  line,  pointing  it  out  as  the  true  line, 
and  inducing  another  to  buy  up  to  it,  he  is  estopped  to  deny  that 
it  is  the  line  between  his  own  and  the  adjoining  land.  Richard- 
son V.  Chickering,  41  N.  H.  380.  But  a  parol  agreement  respect- 
ing a  boundary,  made  while  a  party  is  only  an  occupant  without 
title,  cannot  be  binding  upon  him  after  he  acquires  the  fee. 
Crowell  V.  Maughs,!  111.  419;  Lewallen  v.  Omrton,  9  Humph. 
(Tenn.)  76. 

And  a  bare  trespasser,  having  no  title  whatever,  cannot,  by 
such  agreement,  become  the  owner  of  his  neighbor's  land  ;  nor 
can  there  be  a  plain  and  wide  departure  from  the  boundary  of  a 
natural  object,  like  a  marsh,  under  the  pretext  of  fixing  the 
boundary,  ^¥alker  v.  Devlin,  2  Ohio  St.  593.  So,  in  a  division 
of  land  between  two  parties,  if  either  was  deceived  by  the  inno- 
cent or  fraudulent  misrepresentations  of  the  other  ;  or  there  was 
any  mistake  in  regard  to  their  rights,  the  division  is  not  binding 
on  either.  KnowUon  v.  Smith,  36  Mo.  507  ;  Bailey  v.  Jones,  14 
Ga.  384  ;  Colby  v.  Norton,  19  Me.  412  ;  Coon  v.  Smith,  29  N.  Y. 
(2  Tiff.)  392.  And  if  the  parties  know  where  the  true  line  is, 
and  by  agreement  make  another,  this  would  be  a  parol  transfer 
of  the  land,  and  would  be  void  by  the  statute  of  frauds.  Yar- 
borough  v.  Abernathy,  1  Meigs  (Tenn.),  413.  See  Whitney  v. 
Holmes,  15  Mass.  153  ;  Gove  v.  Richardson,  4  Me.  327. 

The  admission  of  a  party  of  a  mistaken  boundary  line,  for  a 
true  one,  has  no  effect  upon  his  title.  Crowell  v.  Bebee,  10  Vt, 
33.  And  it  is  held,  that  a  parol  assent  by  one  of  them,  as  to  the 
location  of  a  boundary  fence  between  adjoining  owners,  and  the 


720  BOUNDARIES. 

actual  erection  of  tlie  fence  by  the  other,  in  accordance  with  such 
assent,  followed  by  mutual  occupation  and  acquiescence  in  such 
location  of  the  boundary  for  a  few  months,  is  not  sufficient  to 
change  the  true  line,  or  to  preclude  the  assenting  party  from 
asserting  his  rights,  in  accordance  with  such  true  line.  Reed  v. 
McCourt,  41  N.  Y.  (2  Hand)  435.  And  ^qq  Miner  v.  Mayor ^  etc., 
of  New  York,  5  Jones  &  Sp.  (N.  Y.)  171,  189.  Nor  will  parties 
be  bound  by  an  intervening  fence  as  a  boundary  dividing  their 
lands,  where  they  claim  only  to  the  extent  of  their  paper  title, 
whatever  that  may  be,  and  the  fence  is  suffered  to  remain  simply 
as  a  matter  of  convenience.  West  v.  St.  Louis  K.  O.  &  JV.  Bail- 
way  Co.,  59  Mo.  510.  See  Jones  v.  Smith,  3  Hun  (N.  Y.),  351 ;  S. 
C,  5  N.  Y.  S.  C.  (T.  &  C.)  490. 

§  10.  Settlement  of  disputed  houudaries.  The  mode  of  pro- 
ceeding in  the  settlement  of  disputed  boundary  lines  is,  in  some 
cases,  prescribed  by  statute ;  and  special  tribunals  have  been 
provided,  for  the  express  purpose  of  ascertaining  and  determin- 
ing the  line  or  lines  in  dispute.  See  Lisbon  v.  Bowdoin,  53  Me. 
324  ;  Pitman  v.  Albany,  34  N.  H.  577 ;  Perry  v.  Pratt,  31  Conn. 
433 ;  Norris''  Appeal,  64  Penn.  St.  275.  But  in  the  great 
majority  of  cases,  disputes  respecting  boundary  lines  between 
adjoining  owners  of  lands  are  settled  in  the  action  of  ejectment 
or  the  action  for  the  recovery  of  real  property.  So,  the  action 
for  trespass  upon  lands  not  unfrequently  turns  upon  the  ques- 
tion of  boundary.  See  Goodridge  v.  Dustin,  5  Mete.  (Mass.)  363 ; 
Palmer  v.  Anderson,  63  N.  C.  365.  There  are  cases  of  disputed 
boundary,  however,  for  which  there  is  no  adequat^  remedy  ex- 
cept in  a  court  of  equity.  But  equity  has  no  jurisdiction  to  fix 
the  boundaries  of  legal  estates  in  the  absence  of  other  ground 
for  equitable  relief.  Norris^  Appeal,  64  Penn.  St.  275  ;  Wether- 
bee  V.  Dunn,  36  Cal.  249.  To  give  jurisdiction  there  must  be 
some  equity  superinduced  by  the  acts  of  the  parties.  Tillmes  v. 
Marsh,  67  Penn.  St.  507.  And  see  Stewart  v.  Coulter,  4  Rand. 
(Va.)  74;  Haskell  v.  Allen,  23  Me.  448;  Perry  v.  Pratt,  31 
Conn.  433.  Where,  however,  there  are  peculiar  equities  attach- 
ing themselves  to  the  controversy,  or  where  it  will  prevent  a 
multiplicity  of  suits,  a  court  of  equity  will  assume  jurisdic- 
tion and  grant  an  appropriate  remedy.  Boyd  v.  Dowie, 
65  Barb.  237  ;  Wetherbee  v.  Dunn,  36  Cal.  249,  255.  Thus, 
where  a  defendant  has  threatened  and  has  served  a  formal 
written  notice  that  he  intends  to  remove  ten  inches  of  the  end 
wall  of  the  complainant's  dwelling,  which  the  defendant  alleges 


BOUNDARIES.  721 

is  upon  his  land,  a  court  of  equity  will,  to  prevent  multiplicity 
of  suits,  entertain  jurisdiction  and  settle  the  boundaries,  in  order 
to  determine  whether  the  complainant  is  entitled  to  the  continu- 
ance of  its  protection  by  injunction.  De  Veney  v.  Gallagher,  20 
N.  J.  Eq.  33.  And  see  Primm  v.  Bahoteau,  56  Mo.  407,  in  which 
case  it  is  held  that  where  a  court  of  equity  grants  relief  in  re- 
sponse to  the  prayer  of  a  pleading  in  the  nature  of  a  bill  of  peace, 
it  may  effectuate  its  decree  in  their  behalf,  by  requiring  a  dis- 
puted boundary  to  be  surveyed  and  marked  in  a  permanent  man- 
ner. And  where  a  mill-race  was  conveyed,  and  afterward  filled 
up  and  plowed  over  by  one  who  had  acquired  an  interest  in  the 
land,  a  court  of  equity  took  jurisdiction  and  granted  relief 
"  under  a  well-settled  head  of  equity  jurisdiction  —  Confusion  of 
boundaries."  Merriman  v.  Russell,  2  Jones'  Eq.  (N.  C.)  470. 
So  it  would  seem  that  equity  may  enforce  an  oral  agreement  to 
fix  boundary.    Jamison  v.  Petit,  6  Bush  (Ky.),  669 

Vol.  L  — 91 


722  BREACH  OF  MARRIAGE  PROMISE. 

CHAPTER  XXX. 

BREACH  OF  MARRIAGE  PROMISE. 
ARTICLE  I. 

AS  TO   EIGHT  OF  ACTION"  POR  BREACH   OF   PROMISE    TO  MARRY. 

Section  1.  Nature  of  contract  to  marry.  Contracts  to  marry 
are  unlike  all  other  contracts.  They  concern  the  highest  interests 
of  human  life,  and  enlist  the  tenderest  sympathies  of  the  liuman 
heart,  and  the  acts  and  declarations  done  and  employed  by  par- 
ties in  negotiating  them  are  often  correspondingly  delicate  and 
emotional.  No  formal  language  is  necessary  to  constitute  the 
contract.  If  the  conduct  and  declarations  of  the  parties  clearly 
indicate  that  they  regard  themselves  as  engaged,  it  is  not  mate- 
rial by  what  means  they  arrived  at  that  state.  Such  is  the  well- 
established  doctrine,  both  in  England  and  in  this  country.  See 
Whitcoml)  V.  Wolcott,  21  Vt.  368  ;  HotchJcins  v.  Hodge,  38  Barb. 
117  ;  Tefft  v.  Marsh,  1  W.  Va.  38  ;  Coil  v.  Wallace,  24  N.  J. 
(Law)  291 ;  Perlcins  v.  Hersey,  1  R.  I.  493  ;  Waters  v.  Bristol, 
26  Conn.  398 ;  Hutton  v.  Mansell,  6  Mod.  172 ;  Honeyman  v. 
Campbell,  5  Wils.  &  Shaw,  144;  S.  C,  2  Dow.  &  Clark,  282. 
In  the  last-mentioned  case,  the  following  propositions  are  stated 
to  be  the  law  upon  the  subject : 

First  That  the  contract  may  be  proved  by  direct  or  by  circum- 
stantial evidence. 

Second.  That  there  must  be  a  serious  promise.  Intended  as 
such  by  the  person  making  it,  and  accepted  by  the  person  to 
whom  it  was  made. 

Third.  That  mere  courtship  or  even  an  intention  to  marry  is 
not  sufficient  to  constitute  a  contract  of  marriage.  Approved  in 
Homan  v.  Earle,  53  N.  Y.  (8  Sick.)  267,  273. 

The  expression  used  in  many  of  the  cases,  that  a  contract 
may  be  inferred  from  devoted  attention  and  apparently  exclus- 
ive attachment,  has  not  been  generally  adopted  by  the  courts. 
lb. ;  Wiglitman  v.  Coates,  15  Mass.  1,  note  ;  Commonwealth  v. 
Walton,  2  Brewst.  (Penn.)  487.  It  does  not  follow  that  because  a 
man  is  the  suitor  of  a  lady  and  visits  her  frequently,  a  marriage 
engagement  exists.     Walmsley  v.  ^Robinson,  63  111.  41 ;  S.  C, 


BREACH  OF  MARRIAGE  PROMISE.  723 

14  Am.  R.  Ill ;  Burnham  v.  Cornwell,  16  B.  Monr.  (Ky.)  284. 
Nevertheless,  courtship  is  a  most  material  fact  in  the  case  in 
examining  whether  from  the  conduct  of  the  parties  it  appears 
that  a  promise  had  actually  passed  between  them.  Honeyman 
V.  Campbell,  5  Wils.  &  Shaw,  144;  S.  C,  2  Dow.  &  Clark,  282. 
So,  while  it  is  plain  that  an  intention  to  make  a  contract  is  not  a 
contract,  yet  if  such  intention  is  so  expressed  as  that  both  parties 
understand  it  to  be  a  promise,  and  it  is  accepted  as  such,  it  is 
as  binding  as  if  made  in  any  other  form.  Homan  v.  Earle,  53 
N.  Y.  (8  Sick.)  267,  274;  Harvey  v.  JoJmston,  6  C.  B.  295 ;  6  D. 
&  L.  120 ;  12  Jur.  981 ;  17  L.  J.,  C.  P.  298. 

Contracts  to  marry  at  a  future  time  were  once  regarded  with 
disfavor  by  the  English  courts.  See  Lowe  v.  Peers,  4  Burr.  2225, 
2230;  Woodhouse  v.  Shepley,  2  Atk.  535,  539.  But  it  has  long 
been  the  settled  law  both  in  England  and  in  this  country,  that 
such  contracts  are  as  valid  and  effectual  as  any  other  contracts; 
and  actions  may  be  maintained  upon  them,  and  damages  may 
be  recovered  as  well  for  suffering  and  injury  to  condition  and 
prospects,  as  for  pecuniary  loss.  See  Daniel  v.  Bowles,  2  C.  & 
P.  553;  Morgan  v.  Yarhorough,  5  La.  Ann.  317;  Boynton  v. 
Kellogg,  3  Mass.  189;  Lawrence  v.  CooJce,  5Q  Me.  187. 

§  2.  Promises  must  be  reciprocal.  Promises  to  marry  must 
be  reciprocal,  or  no  action  can  be  maintained  for  breach  of 
promise.  Espy  v.  Jones,  37  Ala.  379  ;  Standiford  v.  Gentry,  32 
Mo.  477;  Allard  v.  Smith,  2  Mete.  (Ky.)  297;  TFmoer  v.  Bachert, 
2  Penn.  St.  80.  But  it  is  not  necessary  that  assent  to  the 
engagement  by  both  parties  be  concurrent.  If  an  offer  be  made, 
it  remains  open  for  acceptance  for  a  reasonable  time,  and  after 
acceptance  the  contract  is  complete.  Yeneall  v.  Yeness,  4  F.  & 
F.  344.  An  exception  to  the  rule  as  to  the  necessity  of  reciproc- 
ity would  seem  to  exist  where  the  promise  to  marry  is  made  by 
deed.  Thus,  if  a  man  of  full  age  binds  himself  by  deed  to  marry 
a  woman  by  a  day  named,  he  is  responsible  for  the  non-perform- 
ance of  his  bond  or  covenant,  although  the  woman  may  not  be 
bound  by  a  reciprocal  contract  to  marry  him.  Atkins  v.  Farr, 
1  Atk.  287.  It  is  the  duty  of  the  man,  in  such  case,  to  go  and 
offer  himself  to  the  woman,  and  not  for  the  woman  to  go  in 
search  of  the  man.  Holcroft  v.  Dickenson,  1  Freem.  347;  Sey- 
mour V.  Gartside,  2  D.  &  R.  57.  A  woman  is  also  bound  by 
such  a  deed  or  covenant  as  well  as  a  man,  provided  it  has  been 
obtained  openly  and  fairly,  and  with  perfect  good  faith.  But 
such  a  contract  or  engagement  obtained  from  a  woman  will  be 


724  BKEACH  OF  MARRIAGE  PROMISE. 

regarded  with  the  greatest  jealousy  and  suspicion,  particularly 
where  the  man  has  entered  into  no  corresponding  engagement 
on  his  part.  Cock  v.  Richards,  10  Ves.  437.  Where  the  defend- 
ant' s  promise  is  proved,  the  woman  may  prove  her  own  acts  and 
declarations  in  order  to  show  her  assent.  Wetmore  v.  Wells,  1 
Ohio  St.  26;  Moritz  v.  Melhorn,  13  Penn.  St.  331. 

§  3.  Conditional  promises.  A  contract  to  marry,  like  most 
other  contracts,  may  be  on  condition;  and  if  the  condition  is  a 
lawful  one,  the  liability  attaches  as  soon  as  the  condition  has 
been  accomplished.  Cole  v.  Cottingliam,  8  0.  &  P.  75  ;  Harvey 
V.  Johnston,  6  C.  B.  295;  6  D.  &  L.  120;  12  Jur.  981;  17  L. 
J.,  C.  P.  298.  But  the  condition  may  be  such  as  to  make  the 
contract  Void.  Thus,  if  the  marriage  is  made  to  depend  upon 
the  happening  of  a  distant  and  uncertain  event,  which  may, 
in  all  probability,  not  take  place  during  the  lives  of  the  parties, 
it  would  be  a  contract  in  restraint  of  marriage,  and  void. 
Hartley  v.  Rice,  10  East,  22.  So,  marriage  brokage  bonds, 
as  they  are  called,  are  held  invalid,  as  against  public  policy. 
These  are  contracts  to  marry  at  the  death  of  parents  or  other 
relations  from  whom  money  is  expected,  and  who  are  kept  in 
ignorance  of  the  contract.  Drury  v.  Hoolce,  1  Yern.  412 ; 
Cole  V.  Cottingham,  8  C.  &  P.  75.  But  a  covenant  to  pay  a 
woman  a  sum  of  money,  so  long  as  she  continues  sole  and 
unmarried,  is  not  illegal.     Gibson  v.  Dickie,  3  M.  &  S.  463. 

§  4.  Time  of  performance.  An  agreement  to  marry  at  an  un- 
reasonably distant  time  is  voidable  at  the  option  of  either  party, 
as  being  in  restraint  of  matrimony.  See  Hartley  v.  Rice,  10 
East.  24.  If  no  time  is  specified  for  the  performance  of  the  con- 
tract, it  is  in  contemplation  of  law  a  contract  to  marry  within  a 
reasonable  time  after  request ;  and  either  party  may  call  upon 
the  other  to  fulfill  the  engagement,  and,  in  case  of  default,  may 
bring  an  action  for  damages.  So,  if  a  day  is  fixed  and  agreed 
upon  for  the  performance  of  the  contract,  and,  before  that  day 
arrives,  either  party  refuses  to  perform  the  contract  at  any  time, 
such  party  is  instantly  liable  in  an  action  for  damages  for  breach  of 
promise.  Burtis  v.  Thompson,  42  N.  Y.  (3  Hand)  246 ;  S.  C,  1  Am. 
R.  516  ;  Holloway  v.  Griffith,  32  Iowa,  409  ;  S.  C,  7  Am.  R.  208 ; 
Frost  Y.  Knight,  L.  R.,  7  Ex.  218  ;  S.  0.,  5  Alb.  L.  J.  235  ;  revers- 
ing S.  C,  L.  R.,  5  Ex.  322.  And  if  either  of  the  parties  puts  it  out 
of  his  or  her  power  to  fulfill  the  contract,  by  marrying  somebody 
else,  there  is  a  breach  of  the  engagement ;  and  a  right  of  action 
at  once  attaches.    A  request  to  marry,  in  such  case,  need  not  be 


BREACH  OF  MARRIAGE  PROMISE.  725 

made  or  alleged  in  the  pleadings.  SJiort  v.  Stone,  8  Q.  B.  358  ; 
Lomlock  V.  Franldyn,  8  id.  378  ;  S.  C,  15  L.  J.,  Q.  B.  145  ;  Cle- 
ments  v.  Moore,  1 1  Ala.  35  ;  King  v.  Kersey,  2  Ind.  402. 

§  5.  Validity  of  promise.  A  promise  of  marriage  made  at  a 
time  when  both  parties  were  married,  and  known  to  be  so  by 
each  other,  is  held  invalid.  Paddock  v.  Hobinson,  63  111.  99  ; 
S.  C,  14  Am.  R.  112.  But,  it  is  held  that  an  action  may  be  main- 
tained for  the  breach  of  a  promise  to  marry,  although  the  defend- 
ant was  married  at  the  time  the  promise  was  made,  provided  the 
plaintiff  was  ignorant  thereof.  Kelly  v.  Riley,  106  Mass.  339  ;  S. 
C,  8  Am.  R.  336 ;  Cover  v.  Davenport,  1  Heisk.  (Tenn.)  368  ;  S.  C, 
2  Am.  R.  706  ;    Wild  v.  Harris,  18  L.  J.,  C.  P.  297  ;  7  C.  B.  999. 

A  promise  to  marry,  made  in  consideration  of  illicit  intercourse, 
is  not  binding.  Goodall  v.  TJiurman,  1  Head  (Tenn.),  209; 
Beaumont  v.  Reeve,  8  Ad.  &  Ell.  (N.  S.)  483  ;  Steinfeld  v.  Levy, 
16  Abb.  N.  S.  (N.  Y.)  26  ;  though  it  has  been  held,  that  a  promise 
of  marriage,  made  after  seduction  has  been  effected  and  in  con- 
sequence thereof,  is  not  thereby  rendered  invalid.  HotcJikins  v. 
Hodge,  38  Barb.  117.    See  People  v.  Kenyon,  5  Park.  (N.  Y.)  254. 

An  unwritten  promise  to  marry  after  more  than  a  year  is  void 
within  that  clause  of  the  Statute  of  Frauds  which  requires  that 
a  promise  not  to  be  performed  within  one  year  from  the  making 
shall  be  in  writing.  Derhy  v.  Phelps,  2  N.  H.  515  ;  Nichols  v. 
Weaver,  7  Kans.  373.  But  where  the  defendant  told  the  plain- 
tiff he  was  not  able  to  marry  her  then,  but  promised  her  he 
would  marry  her  within  four  years;  and  it  not  appearing  that 
the  parties  understood  that  the  promise  was  not  to  be  performed 
within  one  year,  it  was  held,  that  such  promise  was  not  within 
the  Statute  of  Frauds.  Lawrence  v.  Cooke,  56  Me.  187.  Mutual 
promises  to  marry  are  sometimes  excepted  from  the  operation  of 
the  Statute  of  Frauds.     2  N.  Y.  R.  S.  140,  §  2,  subd.  3,  Edm.  ed.  • 

§  6.  Excuses  for  breach  of  promise.  It  is  a  sufficient  excuse 
for  the  breach  of  a  woman' s  promise  to  marry,  if  the  person  to 
whom  she  has  given  the  promise  turns  out  upon  inquiry  to  be  a 
man  of  bad  character.  Baddely  v.  Mortlock,  Holt,  151.  So, 
notwithstanding  a  promise  of  marriage  proved,  if  a  man  has  con- 
ducted himself  in  a  brutal  or  violent  manner,  and  threatened 
to  use  a  woman  ill,  she  has  a  right  to  say  she  will  not  commit 
her  happiness  to  such  keeping.  Leeds  v.  Cook,  4  Esp.  257.  Bod- 
ily infirmity,  arising  after  the  contract,  has  been  held  a  good  rea- 
son for  either  of  the  parties  to  break  off  an  engagement.  Atchin- 
son  V.  Baker,  Peake's  Add.  Gas.  103  ;  Short  v.  Stone,  8  Q.  B.  369. 


7:26  BREACH  OF  MARRIAGE  PROMISE. 

But  it  has  also  been  held  by  a  majority  of  the  court,  in  an  Eng- 
lish case,  that  a  party  cannot  set  up  as  an  excuse  for  the  breach 
of  a  promise  to  marry,  that  the  performance  of  the  conjugal 
duties  would  be  dangerous  to  his  life.  Hall  v.  Wriglit,  EL,  Bl. 
&  El.  746  ;  S.  C,  29  L.  J.,  Q.  B.  43  ;  8  W.  R.  160.  And  previous 
insanity  and  confinement  in  a  lunatic  asylum  constitute  no 
excuse  for  non-performance  of  a  promise  of  marriage.  Baker  v. 
CartiorigM,  10  C.  B.  (N.  S.)  124 ;  S.  C,  30  L.  J.,  C.  P.  364.  A 
rape,  wholly  without  the  fault  of  the  woman,  would  discharge 
the  man  from  his  obligation.  And  it  has  also  been  said,  that  if 
a  widow  conceals  her  previous  marriage,  and  betroths  herself  as 
a  virgin,  this  would  be  a  fraud  and  would  avoid  the  contract. 
2  Pars,  on  Cont.  67,  citing  Add.  on  Cont.  581,  584.  If  any  man 
has  been  paying  his  addresses  to  one  that  he  supposes  a 
modest  person,  and  afterward  discovers  her  to  be  loose 
and  immodest,  he  is  justified  in  breaking  any  promise  of 
marriage  he  may  have  made  to  her.  Butler  v.  Eschleman^  18 
jll.  44  ;  Berry  v.  Bakeman,  44  Me.  164  ;  Bell  v.  Eaton,  28  Ind. 
468  ;  Capehart  v.  Carradine,  4  Strobh.  (S.  C.)  42.  Though  it  is 
otherwise  if  he  made  the  engagement  knowing  her  to  be  a  loose 
and  immodest  woman,  or  if  she  afterward  prostituted  her  person 
to  another  man,  with  his  connivance.  Irving  v.  Greenwood, 
1  C.  &  P.  350 ;  Johnson  v.  Smith,  3  Pittsb.  (Penn.)  184.  And 
mutual  improprieties  and  lewdness  between  parties  betrothed, 
should  not  be  allowed  to  bar  the  woman' s  right  of  action  for  a 
breach  of  promise  of  marriage,  or  be  received  either  in  mitiga- 
tion or  aggravation  of  damages.  lb.  This  subject  will  be  fully 
considered  in  treating  of  defenses,  and  of  marriage. 

§  7.  Abandonment  of  contract  to  marry.  The  engagement  to 
marry  may  be  dissolved  by  mutual  consent,  at  any  time  before 
the  contract  is  carried  into  effect  by  the  performance  of  the  mar- 
riage ceremony.  King  v.  Oillett,  7  M.  &  W.  d5.  See  Grant  v. 
Willey,  101  Mass.  356.  And  where  the  plaintiff"  was  induced  by 
the  false  statements  of  a  third  person  to  write  a  letter  to  the  de- 
fendant discarding  him,  and  releasing  him  from  his  promise  to 
marry  her,  which  letter  was  received,  and  in  good  faith  acted 
upon  by  him,  he  having  had  no  knowledge  of  its  fraudulent  pro- 
curement from  her,  she  is  not  entitled  to  recover  in  an  action  for 
an  alleged  breach  of  such  promise.  Allard  v.  Smith,  2  Mete. 
(Ky.)  297.  See  Davis  v.  Bomford,  6  H.  &  N.  245  ;  S.  C,  30  L.  J., 
Exch.  139. 

§  8.  Who  may  maintain  action  for  breach  of  promise.    It  has 


BREACH  OF  MARRIAGE  PROMISE.  727 

long  been  settled  law,  that  where  the  promise  to  marry  is  mutual, 
an  action  for  a  breach  of  the  contract  may  be  maintained  by  a 
man  against  the  woman,  as  well  as  by  the  woman  against  a  man. 
Harrison  v.  Cage,  1  Ld.  Raym.  386 ;  S.  C,  1  Salk.  24.  And 
although  a  promise  of  marriage  by  an  infant  is  not  binding,  and 
an  action  for  the  breach  thereof  cannot  be  maintained  against  an 
infant,  yet,  it  is  well  settled  that  an  infant  may  maintain  such 
an  action  against  the  adult.  Holt  v.  Ward,  2  Strange,  937; 
Pool  V.  Fratt,  1  D.  Chip.  (Vt.)  252  ;  Hunt  v.  PeaU,  5  Cow.  475. 
A  single  woman,  to  whom  a  married  man  represents  that  he  is 
single,  and  promises  marriage,  may  maintain  an  action  against 
him  for  the  breach  of  his  promise.  Blattmacher  v.  Saal,  29  Barb. 
22  ;  S.  C,  7  Abb.  409 ;  ante,  725,  §  5.  And  this,  notwithstanding 
the  fact  that  she  afterward  became  aware  of  his  marriage,  and 
did  not  repudiate  her  contract,  but  still  agreed  to  marry  him 
when  she  should  be  able  to  by  reason  of  an  expected  sepaiation 
from  his  wife.     Coomr  v.  Davenport,  1  Heisk.  (Tenn.)  368. 

The  promise  to  marry  being  essentially  personal  in  its  nature, 
the  common-law  maxim  actio  personalis  moritur  cum  persona, 
is  regarded  as  applicable  to  the  action  for  its  breach.  The  per- 
sonal representative  of  the  injured  party  cannot,  therefore,  bring 
the  action,  unless,  perhaps,  special  damage  is  alleged  and  proved. 
Chamberlain  v.  Williamson,  2  Maule  &  Selw.  408.  Nor  can  the 
action  be  revived  against  the  executors  or  administrators  of  the 
promisor.  Smith  v.  Sherman,  4  Cush.  (Mass.)  408  ;  Wade  v. 
Kalbjleisch,  68  N.  Y.  (13  Sick.)  282 ;  Latimore  v.  Simmons,  13 
Serg.  &  Rawle  (Penn.),  183. 

§  9.  Damages  in  action  for.  In  action  for  a  breach  of  promise 
of  marriage,  damages  cannot  be  measured  by  a  known  standard, 
as  in  commercial  cases,  but  the  amount  is  peculiarly  a  question 
for  the  jury.  Berry  v.  Da  Costa,  L.  R.,  1  C.  P.  331  ;  S.  C,  1 
H.  &  R.  291.  And  the  courts  are  very  unwilling  to  set  aside  a 
verdict  in  these  cases,  on  the  ground  of  excessive  damages. 
Smith  V.  Woodfine,  1  C.  B.  (N.  S.)  660 ;  Southard  v.  Rexford,  6 
Cow,  254.  The  law  allows  punitive  or  vindictive  damages  to  be 
assessed  by  the  jury.  lb.;  Johnson  v.  Jenkins,  24  N.  Y.  (10 
Smith)  252 ;  Thorn  v.  Knapp,  42  N.  Y.  (3  Hand)  474 ;  S.  C,  1 
Am.  R.  661.  And  aU  the  circumstances  attending  the  breach, 
before,  at  the  time,  and  after,  may  be  given  in  evidence  in  aggra- 
vation of  damages.  Baldy  v.  Stratton,  11  Penn.  St.  316 ;  Tubhs 
V.  Van  Kleek,  12  111.  446 ;  Wade  v.  Kalbjleisch,  58  N.  Y.  (13 
Sick.)  282,  285  ;  Heed  v.  Clark,  47  Cal.  194.     Thus,  the  plaintiff 


728  BREACH  OF  MARRIAGE  PROMISE. 

may,  for  the  purpose  of  enhancing  damages,  prove  that  she 
announced  the  fact  of  her  engagement  to  her  friends,  and  invited 
them  to  attend  the  wedding.  lb.  So,  the  length  of  time  a  mar- 
riage engagement  existed  is  a  proper  element  of  damage  for  the 
breach  thereof.  Grant  v.  Willey,  101  Mass.  356.  A  defense  to 
an  action  for  a  breach  of  promise,  that  the  plaintiff  is  unchaste, 
if  not  established  by  proof  upon  the  trial,  should  be  considered 
by  the  jury  in  aggravation  of  damages.  Southard  v.  Rexford, 
6  Cow.  654 ;  Dams  v.  Slagle,  27  Mo.  600.  But  it  is  held  in  a 
recent  case,  that  such  a  defense,  though  unsuccessful,  ought  not, 
per  se,  to  aggravate  the  damages,  unless  interposed  in  bad 
faith,  from  malice,  wantonness,  or  recklessness.  Powers  v. 
Wheatly,  45  Cal!  113.  See  Simpson  v.  Blaclc,  27  Wis.  206 ; 
Thompklns  v.  Wadley,  3  N.  Y.  S.  C.  (T.  &  C.)  424.  That  seduc- 
tion may  be  proved  in  aggravation  of  damages,  in  an  action 
for  breach  of  promise  to  marry,  has  been  held  in  some 
cases.  See  SheaTian  v.  Barry,  27  Mich.  217;  Paul  v. 
Frazier,  3  Mass.  73;  Sherman  v.  Rawson,  102  id.  895;  PJspy  v. 
Jones,  37  Ala.  379;  F idler  v.  McKinley,  21  111.  308;  Kelly  v. 
Riley,  106.  id.  339;  S.  C,  8  Am.  R.  336;  Matthews  v.  Crihhett, 
11  Ohio  St.  330.  While  it  has  been  questioned  or  denied  in  other 
cases.  See  Gates  v.  McKinney,  48  Ind.  562;  S.  C,  17  Am.  R.  768; 
Baldy  v.  Stratton,  11  Penn.  St.  316;  Perkins  v.  Hersey,  1  R.  I. 
493;  Burks  v.  Shain,  2  Bibb  (Ky.),  341.  It  would  seem  to  be 
settled,  however,  that  where,  by  statute,  a  woman  has  a  right  of 
action  for  her  own  seduction,  such  seduction  cannot  be  given  in 
evidence  in  an  action  by  her  for  breach  of  promise  of  marriage,  to 
enhance  the  damages,  unless  it  is  alleged  in  the  pleading.  Gates 
V.  McKinney,  48  Ind.  562.     See  Lindley  v.  Dempsey,  45  id.  246. 

An  instruction  to  the  jury  in  an  action  for  a  breach  of  promise, 
that  if  they  find  for  the  plaintiff  they  should  award  her  such 
damages  as  would  place  her  in  as  good  a  condition  pecuniarily 
as  she  would  have  been  in  if  the  contract  had  been  fulfilled,  has 
been  held  unobjectionable.  Lawrence  v.  Gooke,  56  Me.  187,  195. 
But  in  Miller  v.  Rosier,  31  Mich.  475,  such  an  instruction  was 
held  to  be  altogether  too  complicated  and  conjectural  in  its  ele 
ments  to  be  of  service  as  a  guide  to  the  jury. 

The  jury  cannot  take  into  consideration  any  damages  sustained 
by  the  plaintiff,  by  reports  raised  since  the  commencement  of 
the  action.  Oreenup  v.  Stoker,  7  111.  688.  And  unless  special 
damages  are  averred  and  stated,  proof  of  damage  to  the  health 
of  the  plaintiff,  as  a  consequence  of  the  breach  of  promise  to 
marry,  is  inadmissible.    Bedell  v.  Powell^  13  Barb.  183. 


BEIDGES.  729 


CHAPTER  XXXI. 

BRIDGES. 
ARTICLE  I. 

OF  THE  GENERAL  RULES  OF  LAW  RELATING  TO  BRIDGES. 

Section  1.  Defluition  of.  A  bridge,  as  known  to  the  common 
law,  was  a  structure  over  a  river  or  other  stream  of  water,  having 
a  foot-path  for  man  and  beast.  Proprietors  of  Bridges  v.  Hoho- 
ken  Land  Co.,  13  N.  J.  Eq.  504.  But  it  was  held  not  essential 
to  a  bridge,  in  the  legal  sense  of  the  word,  that  it  should  be  a 
structure  over  water  which  flows  at  all  times.  Meg.  v.  Derby- 
shire. 2  Q.  B.  745;  S.  C,  2  G.  &  D.  97.  As  now  used,  the  term 
"bridges"  is  one  of  comprehensive  scope,  and  is  defined  as  a 
"  structure  erected  over  a  river,  creek,  stream,  ditch,  ravine  or 
other  place,  to  facilitate  the  passage  thereof;  including  by  the 
term  both  arches  and  abutments."  1  Bouv.  Diet.  222.  And  see 
Board  of  Chosen  Freeholders  v.  Strader,  18  N.  J.  (Law)  108; 
Enfield  Toll-Bridge  Co.  v.  Hartford  <&  New  Haven  Railioay 
Co.,  17  Conn.  66.  It  is  held,  however,  that  the  crossing  of  a  river 
by  a  railroad  track  on  piers  is  not  a  bridge  within  the  meaning 
of  a  previous  charter  which  makes  the  erection  of  any  other 
bridge  or  bridges  unlawful.  Lake  v.  Virginia,  etc.,  R.  R.  Co. , 
7  Nev.  294;  McLeod  v.  Savannah,  etc.,  R.  R.  Co.,  25  Ga.  445; 
Bridge  Co.  v.  Hoboken  Land  Improvement  Co.,  10  N".  J.  81;  S. 
C.  affirmed,  1  Wall.  (U.  S.)  116  ;  Thompson  v.  N.  T.  &  Harlem 
R.  R.  Co.,  3  Sandf.  Ch.  (N.  Y.)  625. 

Bridges  are  either  public  or  private.  A  private  bridge  is  one 
constructed  for  the  use  of  one  or  more  private  persons  ;  and  it  is 
none  the  less  a  private  bridge,  although  it  may  be  occasionally 
used  by  the  public.  King  v.  Lihabitants  of  Bucks,  12  East, 
203.  A  public  bridge  is  one  that  forms  a  part  of  the  highway, 
and  is  common,  according  to  its  character,  as  a  foot,  horse,  or 
carriage  bridge,  to  the  public  generally,  with  or  without  toll. 
Rex  V.  Inhabitants,  etc.,  of  Yorkshire,  2  East,  342;  1  Bouv. 
Diet.  222.  A  bridge  may  be  a  public  bridge  which  is  used  by 
the  public  only  at  such  times  as  are  dangerous  to  pass  through 
the  stream.    Rex  v.  Northampton,  -2  M.  &  S.  262.     And  it  is 

Vol.  L  — 92 


730  BRIDGES. 

held  that  a  bridge  used  only  on  occasion  of  floods,  and  lying  out 
of  and  alongside  the  road  commonly  used,  is  a  public  bridge. 
Rex  V.  Devon,  R.  &  M.  144.  A  public  bridge  being  regarded  as 
a  highway,  the  principles  of  the  common  law  applicable  to  the 
latter  is,  in  general,  applicable  to  the  former. 

§  2.  How  established.  Public  bridges  may  be  established  by 
legislative  authority,  or  by  dedication.  Congress  has  the  consti- 
tutional power  to  legalize  a  bridge.  Clinton  Bridge,  10  Wall. 
454 ;  and  the  legislative  power  of  a  State  to  authorize  the  erection 
of  a  public  bridge  is  undoubted.  See  Harrell  v.  Ellsworth,  17 
Ala.  576  ;  Flanagan  v.  Philadelphia,  42  Penn.  St.  219 ;  Erie 
City  V.  Swingle,  22  id.  384  ;  Jones  v.  Keith,  37  Tex.  394 ;  Wriglit 
V.  Nagle,  48  Ga.  367;  Strong  v.  Dunlap,  10  Humph.  (Tenn.) 
423 ;  Piscataqua  Bridge  Co.  v.  N.  H.  Bridge  Co.,  7  N.  H.  35 ; 
Rogers  v.  Kennebec  &  Portland  R.  R.  Co.,  35  Me.  319  ;  Wiscon- 
sin River  Improvement  Co.  v.  Lyons,  30  Wis.  61.  And  there 
are  three  cases  in  which  authority  from  the  legislature  is  neces- 
sary to  erect  a  bridge  over  a  stream  :  First.  Where  the.  stream 
is  navigable.  Second.  Where  the  State  owns  the  bed  of  the 
stream.  Third.  Where  the  right  to  take  tolls  is  desired.  Eort 
Plain  Bridge  Company  v.  Smit7i,  30  N.  Y.  (3  Tiff.)  44,  63.  The 
power  of  erecting  a  bridge,  and  taking  tolls  thereon,  over  a  nav- 
igable river  forming  the  conterminous  boundary  between  two 
States,  can  only  be  conferred  by  the  concurrent  legislation  of 
both  States.  President,  etc.,  v.  Trenton  Bridge  Co.,  13  N.  J. 
Eq.  46;  Dover  v.  Portsmouth  Bridge,  17  N.  H.  200;  Middle 
Bridge  Corporation  v.  Marks,  13  Me.  326. 

Although  a  State  has  the  right  to  authorize  the  construction  of 
a  bridge  over  a  navigable  river  within  its  own  limits,  yet  the 
power  conferred  must  be  so  exercised,  that  no  more  injury  may 
be  done  to  the  rights  of  others  than  is  necessary  to  accomplish 
the  purpose  for  which  it  is  granted.  Care  must  be  taken  to 
interrupt  navigation  as  little  as  possible.  State  v.  Inhabitants 
of  Freeport,  43  Me.  198  ;  and  for  any  unnecessary  interruption 
the  proprietors  of  the  bridge  will  be  held  liable  in  damages,  or 
the  bridge  may  be  abated  as  a  nuisance,  by  injunction.  See 
Reg.  V.  Betts,  22  Eng.  Law  &  Eq.  240  ;  Renwick  v.  Morris,  3 
Hill  (N.  Y.),  621 ;  S.  C.  affirmed,  7  id.  575  ;  Blanchard  v.  West- 
ern Union  Tel.  Co.,  60  N.  Y.  (15  Sick.)  510,  515  ;  Pennsylvania 
V.  Wheeling,  etc..  Bridge  Co.,  13  How.  (U.  S.)  518  ;  Devoe  v.  Pen- 
rose Ferry  Co.,  5  Penn.  Law  J.  R.  313. 

The  legislature  of  a  State  may  authorize  the  erection  of  a  new 


BRIDGES.  731 

bridge,  so  near  an  older  one  as  to  impair  or  destroy  the  value  of 
the  latter,  without  compensation,  unless  the  older  franchise  be 
protected  by  the  terms  of  its  grant.  Charles  Blver  Bridge  Co. 
V.  Warren- Bridge,  11  Pet.  420  ;  7  Pick.  (Mass.)  344;  Turner  v. 
Peck,  1  Barb.  Ch.  (N.  Y.)  549.  See  Parrott  v.  City  of  Lawrence, 
2  Dill.  332.  But  a  new  bridge  so  erected,  unless  authorized  by 
statute,  is  unlawful,  and  may  be  enjoined  as  a  nuisance.  And  if 
the  older  franchise  vested  in  an  individual  or  private  corporation, 
be  protected,  or  be  exclusive  within  given  limits,  by  the  terms  of 
its  grant,  the  erection  of  a  new  bridge,  even  under  legislative 
authority,  is  unconstitutional,  as  an  act  impairing  the  obligation 
of  a  contract.  Newburgh  Turnpike  Co.  v.  Miller,  5  Johns.  Ch. 
101,  111 ;  Chenango  Bridge  Co.  v.  Lewis,  63  Barb.  Ill ;  Dyer  v. 
Tuscaloosa  Bridge  Co.,  2  Port.  (Ala.)  296 ;  Hartford  Bridge 
Co.  V.  East  Hartford,  18  Conn.  53  ;  Piscataqua  Bridge  v.  New 
Hampshire  Bridge,  7  N.  H.  35.     See  Tripp  v.  Frank,  4  T.  R. 

As  to  bridges  established  by  dedication,  see  the  subject  of 
Highways,  where  the  principles  applicable  to  the  dedication  of 
both  will  be  found  fully  stated.  It  may  be  remarked,  however, 
that  in  the  case  of  bridges  their  acceptance  will  not  be  pre- 
sumed from  mere  use,  until  they  are  proved  to  be  of  public  util- 
ity. Williams  v.  Cummington,  18  Pick.  (Mass.)  312  ;  Dygert 
V.  8'chenck,  23  Wend.  446  ;  Rex  v.  Inhabitants,  etc.,  of  York- 
shire, 2  East,  342.  See  Requea  v.  City  of  Rochester,  45  N.  Y.  129  ; 
S.  C,  6  Am.  R.  52. 

§  3.  Reparation  of  bridges.  In  England,  by  the  common  law, 
counties  are  chargeable  with  the  repair  of  all  public  bridges, 
whether  foot,  horse  or  carriage  bridges,  unless  they  can  show 
that  other  persons  are  bound  to  repair  particular  bridges.  Rex  v. 
W.  R.  of  Yorkshire,  2  East,  342  ;  Rex  v.  Salop,  13  id.  95  ;  Reg.  v. 
Southampton,  14  Eng.  Law  &  Eq.  116.  In  this  country,  the  duty 
of  repairing  bridges  is  regulated  by  statute  in  the  different 
States,  and  the  burden  is  generally  imposed  upon  towns  or  coun- 
ties. See  Norwich  v.  Commissioners,  13  Pick.  (Mass.)  60  ;  Bard- 
well  V.  Jamaica,  15  Vt.  438  ;  State  v.  Boscawen,  8  Fost.  (N.  H.) 
195  ;  Hill  V.  Supervisors  of  Livingston,  12  N.  Y.  (2  Kern.)  52. 
But  bridges  owned  by  corporations  or  individuals  are  repairable 
by  their  proprietors.  Heacock  v.  Sherman,  14  Wend.  58  ;  Com- 
monwealth V.  Newburyport  Bridge,  9  Pick.  (Mass.)  142.  See 
Brookins  v.  Central  R.  R.  and  Banking  Co.,\8  Ga.  523.  So  the 
individual  or  corporation,  for  whose  exclusive  benefit  a  bridge 


732  BRIDGES. 

is  made  over  a  highway,  must  keep  it  in  repair,  and  is  liable 
for  injuries  caused  to  third  persons  in  consequence  of  its  being 
out  of  repair.  Dygert  v.  ScTiencJc,  23  Wend.  446 ;  Heacock  v. 
Sherman^  14  id.  58  ;  Perley  v.  Chandler,  C  Mass.  453.  But  a 
bridge,  though  erected  by  individuals,  yet  if  dedicated  to  the 
public,  used  by  the  public,  and  found  to  be  of  public  utility, 
must  be  repaired  by  the  public.     State  v.  Campton,  2  N.  H.  513. 

In  Pennsylvania,  it  is  held  that  in  the  absence  of  special  obli- 
gation by  prescription  or  legislative  enactment,  the  duty  of  repair- 
ing public  bridges  falls  on  the  public,  either  on  the  county,  city, 
or  borough,  in  which  the  bridge  is  erected.  Meadmlle  v.  Erie 
Canal  Co.,  18  Penn.  St.  m.    See  BroomalVs  Appeal,  75  id.  173. 

§  4.  Remedies  for  neglect  to  repair.  In  all  cases,  the  parties 
chargeable  with  the  repair  of  bridges  are  under  an  obligation  to 
constantly  keep  them  in  such  a  state  of  repair,  as  renders  them 
safe  and  convenient  for  the  service  required  of  them  {People  v. 
Hillsdale,  etc..  Tump.  P.  Co.,  23  Wend.  254) ;  and  for  a  neglect 
of  this  duty,  the  parties  render  themselves  liable  to  indictment. 
People  V.  Cooper,  6  Hill  (N.  Y.),  516 ;  Commonwealth  v.  Newbury- 
port  Bridge,  9  Pick.  (Mass.)  142 ;  State  v.  King,  3  Ired.  L.  (N. 
C.)  411.  See  State  v.  Seawell,  3  Hawks  (N.  C),  193.  So,  it  has 
been  held  that  they  may  be  compelled  to  repair  by  mandamus. 
Brander  v.  Chesterfield  Justices,  5  Call  (Va.),  648  ;  People  v. 
Supervisors  of  Dutchess,  1  Hill  (N.  Y.),  50.  See  People  v. 
Dutchess  &  Columbia  P.  P.  Co.,  58  N.  Y.  (13  Sick.)  152.  But 
see  Peg.  v.  Trustees,  etc.,  12  Ad.  &  El.  427.  And  if  the  duty  to 
repair  be  imposed  by  charter  upon  a  corporation,  it  may  be 
proceeded  against  for  neglect  by  quo  warranto  for  the  forfeiture 
of  its  franchise.  People  v.  Hillsdale,  etc..  Tump.  P.  Co.,  23 
Wend.  254.  Or  damages  may  be  recovered  against  it  in  an  action 
in  favor  of  any  person  sustaining  special  injury  from  the  neglect 
{Townsend  v.  Susquehanna  Turnpike,  6  Johns.  90  ;  Williams 
V.  Turnpilce  Corporation,  4  Pick.  [Mass.]  341)/,  and  in  many 
of  the  States  a  similar  action  is  given  by  statute  against  public 
bodies  chargeable  with  the  repairs.  See  Farnum  v.  Concord,  2 
N.  H.  392 ;  Chidsey  v.  Canton,  17  Conn.  475  ;  Kelsey  v.  Glowr, 
15  Vt.  708 ;  Sawyer  v.  Northfield,  7  Cush.  (Mass.)  490. 

In  an  action  for  damages  arising  from  a  defect  in  a  bridge,  ex- 
emplary damages  may  be  given,  in  case  the  defendants  have 
been  guilty  of  gross  negligence.  Whipple  v.  Walpole,  10  N.  H. 
130. 

Where  the  owner  of  land  over  which  a  public  road  passes, 


BRIDGES.  733 

digs  a  race-way  across  tlie  road,  and  builds  a  bridge  over  it,  he 
is  liable  for  damages  arising  from  the  imperfection  of  the  bridge. 
Dygert  v.  Schenck^  23  Wend.  446.  But  the  owner  of  a  private 
bridge  is  not  liable  for  injuries  to  a  person  crossing  it,  to  whom 
the  owner  had  given  no  special  right  to  pass,  or  to  have  it  kept 
in  repair.  Louismlle,  etc.,  Canal  Co.  v.  Murphy.,  9  Bush  (Ky.), 
522.  A  bond  given  to  build  a  bridge  and  keep  it  in  repair  a 
given  time  will  bind  the  obligor  to  rebuild,  if  the  bridge  be 
washed  away  even  by  an  extraordinary  flood  in  such  time.  Gath- 
wright  v.  Callaway  Co.,  10  Mo.  663. 

A  bridge  erected  by  a  volunteer  in  a  highway,  where  it  was 
needed,  becomes  the  property  of  the  municipality  where  it  is 
allowed  to  remain  for  years,  and  should  be  kept  in  repair  by  such 
municipality.  Requea  v.  City  of  Rochester,  45  N.  Y.  (6  Hand) 
52;  S.  C,  6  Am.  Rep.  52.  And  if  a  traveler  is  injured,  without 
fault  on  his  part,  in  consequence  of  the  removal  of  planks  by 
unknown  persons,  the  city,  being  bound  to  keep  the  bridge  in 
repair,  will  be  liable  although  no  actual  notice  of  the  defect  is 
given,  sufficient  time  having  elapsed  to  render  the  condition  of 
the  bridge  notorious.  lb. 

§  5.  Toll-bridges.  A  toll-bridge,  built  in  pursuance  of  an  act 
of  the  legislature,  is  a  public  highway.  Thompson  v.  Matthews, 
2  Edw.  (N.  Y.)  212.  And  a  State  legislature  has  authority  to 
grant,  by  charter,  an  exclusive  right  to  erect  a  bridge  and  take 
tolls,  and  such  a  charter,  if  granted  without  reservation  or  quali- 
fication, is  a  contract  within  the  provision  of  the  constitution  of 
the  United  States,  prohibiting  State  laws  to  impair  the  obliga- 
tion of  contracts.  Binghamton  Bridge,  3  Wall.  (U.  S.)  51 ; 
reversing  S.  C,  27  N.  Y.  (13  Smith)  87 ;  26  How.  (N.  Y.)  124, 
And  see  cases  cited,  ante,  §  2.  It  is  immaterial  whether  the 
instrument  by  which  the  public  faith  is  pledged,  is  in  terms  a 
contract  or  in  form  a  mere  legislative  enactment ;  in  either  case 
it  is  equally  a  contract  within  the  meaning  of  the  constitution. 
Bridge  Co.  v.  Hohoken,  etc.,  Co.,  13  N.  J.  Eq.  81.  And  where 
one  has  a  grant  of  a  bridge,  with  the  exclusive  right  of  taking 
toll,  the  erection  of  another  bridge  so  near  it  as  to  materially 
affect  or  take  away  its  custom,  is  a  nuisance ;  and  the  court  will 
grant  an  injunction  to  protect  the  enjoyment  of  the  franchise.. 
Newhurgh  Turnpike  Co.  v.  Miller,  5  Johns.  Ch.  101 ;  Mayor, 
etc.,  of  N.  Y.  V.  JY.  Y.  &  Staten  Island  Ferry  Co.,  49  How.  (N. 
Y.)  250 ;  Smith  v.  Hawkins,  3  Ired.  Eq.  (N.  C.)  613.  But  it  is 
held,  that  such  franchise  is  not  interfered  with  by  a  legislative 


734  BKIDGES. 

grant  of  a  right  to  build  a  railroad  bridge.  McLeod  v.  Savannah, 
etc.,  R.  R.  Co.,  25  Ga.  445 ;  Lake  v.  Virginia,  etc.,  R.  R.  Co.,  7 
Nev.  294.  And  a  franchise  to  erect  a  bridge  and  take  tolls,  being 
property,  may  be  taken  for  public  use,  like  other  property,  if 
adequate  compensation  is  made  to  the  proprietor.  Piscataqua 
Bridge  Co.  v.  New  Hampsliire  Bridge,  7  N.  H.  35.  And  see 
Jones  V.  Keith,  '61  Texas,  394. 

The  payment  of  tolls  can  be  lawfully  enforced  only  at  the 
gate  or  toll-house.  State  v.  Dearhorn,  15  Me.  402.  And  where 
a  charter  granting  the  right  to  erect  a  toll-bridge  requires  that 
the  rates  of  toll  shall  constantly  be  kept  exposed  to  the  view  of 
passengers  at  the  place  where  the  tolls  are  collected,  no  action 
can  be  maintained  for  the  recovery  of  the  penalty,  for  forcibly 
passing  the  bridge  without  paying  toll,  unless  the  corporation 
has  complied  with  this  requirement.  Middle  Bridge  v.  Brooks, 
13  Me.  391.  And  see  Bonham  v.  Taylor,  10  Ohio,  108 ;  Worcester 
V.  Essex  Merrimac  Bridge,  7  Gray  (Mass.),  457.  A  bridge 
company  may  bind  themselves  by  a  contract  to  permit  certain 
persons  to  pass  their  bridge  free  of  toll.  Central  Bridge  Co.  v. 
Sleeper,  8  Cush.  (Mass.)  324;  Same  v.  Bailey,  id.  319.  And 
such  exemption  may  exist  by  a  provision  of  the  charter  of  a 
bridge  company;  in  which  case  the  exemption  is  to  be  liberally 
construed.  Railroad  Company^.  Jones, ^.  Rich.  Eq.  (S.  C)  459; 
Wooster  v.  Yan  Yechten,  10  Johns.  467  ;  Salmon  v.  Mallett,  2 
Murph.  (N.  C.)  372  ;  Cayuga  Bridge  Co.  v.  Stout,  7  Cow.  33. 

In  the  absence  of  any  special  provision  in  the  charters  of  toll- 
bridge  corporations,  there  seems  to  be  no  essential  difference 
between  the  obligations  and  liabilities  resting  upon  them  and 
those  of  a  town  charged  with  the  maintenance  of  a  bridge. 
Orcutt  V.  Kittery  Point  Bridge  Co.,  53  Me.  500.  See  State  v. 
Turnpike  Co.,  16  Ohio  St.  308  ;  Chase  v.  Bridge  Co.,  6  Allen 
(Mass.),  512.  They  are  bound  to  use  at  least  ordinary  care  and  dili- 
gence in  the  construction  of  the  bridge,  and  in  keeping  it  in  proper 
order.  Bridge  Co.  v.  Williams,  9  Dana  (Ky.),  403 ;  Grigshy  v. 
Chappell,  5  Rich.  (S.  C.)  443.  And  the  mere  opinion  and  belief 
of  the  proprietors  of  the  bridge  that  it  is  safe  will  not  excuse 
them  from  liability  for  injuries  arising  from  its  defects ;  they 
should  avail  themselves  of  the  judgment  of  such  as  are  disin- 
terested, skillful,  and  experienced  in  such  matters.  Bridge  Go, 
V.  Williams,  9  Dana  (Ky.),  403.  See  Stack  v.  Banks,  6  Lans. 
(N.  Y.)  262 ;  Rapho  v.  Moore,  68  Penn.  St.  404. 

While  the  proprietor  of  atoll-bridge  is  making  needful  repairs, 


BRIDGES.  735 

and  part  of  the  flooring  is  ofi",  and  timbers  out  of  tlieir  usual 
place,  but  in  plain  sight,  and  the  collection  of  toll  discontinued, 
he  is  not  liable  to  one  who,  in  attempting  to  cross  on  planks  laid 
down  for  the  workmen' s  use,  falls  through  and  is  injured.  Tift  v. 
Jones^  52  Ga.  638  So,  toll-bridge  corporations  are  not  bound  to 
erect  and  maintain  railings  upon  their  bridges  for  passengers  to 
lean  against  or  rest  upon  while  they  stop  to  recover  from  fatigue. 
And,  if  a  person  uses  them  for  such  purpose,  he  does  it  at  his 
own  risk.     OrcuU  v.  Kittery  Point  Bridge  Co.,  53  Me.  500. 

The  owners  of  a  steamboat,  licensed  to  run  on  a  navigable 
river,  notified  the  owners  of  a  railroad  bridge,  crossing  the  river, 
to  make  a  draw  in  their  bridge  as  required  by  their  charter. 
Some  time  afterward,  the  owners  of  the  boat  arriving  with  it  at 
the  bridge,  and  not  being  able  to  pass,  no  draw  having  been 
made,  tore  down  part  of  the  bridge  and  passed.  This  was  held 
a  lawful  abatement  of  a  nuisance.  State  v.  Parrott,  71  N.  C. 
311;  S.  C  17Am.  R.  5. 


736  CANALS. 


CHAPTER  XXXII. 

CANALS. 
AETICLE  I. 

GENERAL  RULES   OF    LAW   RELATING  TO  CANALS, 

Section  1.  Definition.  A  canal  is  defined  as  "  an  artificial  cut 
or  trench  in  the  earth  for  conducting  and  confining  water  to  be 
used  for  transportation."  1  Bouv.  Diet.  236.  The  importance  of 
canals,  as  a  means  of  inland  navigation,  has  attracted  attention 
from  the  earliest  times.  They  were  known  in  Egypt  at  a  very 
early  period,  and  modern  nations  have  been  prompt  in  availing 
themselves  of  the  advantages  to  be  derived  from  their  construc- 
tion and  use.  When  constructed  by  public  authority,  they  are, 
in  law,  regarded  as  public  highways,  with  the  right  of  tolls 
attached.  Rogers  v.  BradsTiaw,  20  Johns.  735  ;  Riddle  v.  Pro- 
prietors of  Locks ^  etc.^  7  Mass.  169  ;  Commonwealih  v.  FisTier^ 
1  Penn.  462  ;  Cooper  v.  Williams,  4  Ham.  (Ohio)  253 ;  Rex  v. 
Kent,  13  East,  220;  Rex  v  Chelsea  Water  Works,  5  B.  &  Aid. 
156.  Canal-boats  are  held  not  to  be  within  the  description  of 
"  vessels  of  the  United  States,"  mortgages  of  which  are  declared 
by  act  of  Congress  to  be  void,  unless  recorded  in  the  ofiice  of  the 
collector  of  customs,  where  such  vessels  are  registered  or  en- 
rolled. And  there  is  no  law  which  requires  canal-boats  to  be 
registered  in  the  collector's  oflBlce  of  the  United  States.  HicTcs  v. 
Williams,  17  Barb.  523. 

§  2.  Construction  and  management  of.  Public  canals  are  con- 
structed and  managed  under  the  provisions  of  statutes  and  chart- 
ers enacted  for  the  purpose.  In  this  country  they  are  constructed 
and  managed  either  by  the  State  itself,  acting  through  the  agency 
of  commissioners,  or  they  are  wholly  controlled  by  incorporated 
companies.  In  either  case,  private  property  may  be  taken  for 
the  construction  of  the  canals,  but  a  strict  compliance  with  the 
statute  authorizing  such  taking  is  required.  See  Farnv/m  v. 
Blackstone  Canal  Corp.,  1  Sumn.  46 ;  BinneyY.  Chesapeake  & 
Ohio  Canal  Co.,  8  Pet.  201.  And  the  authority  cannot  be  dele- 
gated, unless  there  be  special  power  of  substitution.  Lyon  v. 
Jerome,  26  Wend.  485  ;  St.  Peter  v.  Denison,  68  N.  Y.  (13  Sick.^ 


CANALS.  737 

416.  So,  in  general,  where  lands  are  thus  taken,  an  easement 
only  in  the  lands  through  which  the  canal  is  constructed  is 
acquired.  The  land-owners  retain  the  right  to  make  any  use  of 
the  land  or  water  which  does  not  interfere  with  the  public  pur- 
poses to  which  they  have  been  appropriated.  Hence,  they  are 
not  liable  to  the  proprietors  of  the  canal  for  damages  for  cutting 
ice  for  sale  in  the  canal.  Edgerton  v.  Huff,  26  Ind.  35.  See 
BrincJcerhoff  v.  Wemple,  1  Wend.  474  ;  Western  Penn.  B.  M.  Co. 
V.  Childs,  3  Pittsb.  (Penn.)  168.  But,  although  the  title  remains 
in  the  original  owner  until  he  is  paid  therefor,  he  cannot  sustain 
an  action  against  the  party  taking  the  same  for  an  injury  thereto. 
Ligat  V.  Commonwealth,  19  Penn.  St.  456  ;  Turrell  v.  Norman, 
19  Barb.  263.  And  the  legislature  have  the  exclusive  power  to 
determine  when  land  may  be  taken  for  a  canal  or  other  public 
use,  and  the  courts  cannot  review  their  determination  in  that 
respect.  Hankins  v.  Lawrence,  8  Blackf.  266 ;  Harris  v.  T?iomp- 
son,  9  Barb.  350. 

Twenty  years'  user  of  an  opening  in  the  bank  of  a  canal  to 
supply  it  with  water  from  a  swamp  as  a  reserve,  notwithstanding 
an  occasional  overflow,  was  held  not  sufficient  to  establish  such 
a  prescriptive  right  in  the  canal  company  as  to  entitle  them  so  to 
increase,  either  intentionally  or  negligently,  such  outflow,  as  to 
cause  the  water  to  escape  from  the  swamp  and  submerge  the 
land  of  an  adjacent  proprietor.  Savannah,  etc..  Canal  Co.  v. 
Bourquin,  51  Ga,  378.  And  it  is  held,  that  a  canal  company, 
having  power  under  their  cliarter  to  enlarge  their  canal  and  to 
take  private  property  on  making  compensation,  are  liable  to  the 
owner  of  lands  which  are  inundated  and  injured  by  such  enlarge- 
ment, though  it  is  made  with  all  reasonable  care  and  skill.  8el- 
den  V.  Delaware,  etc.,  Canal  Co.,  24  Barb.  362.  See  Chase  v. 
Sutton  Manuf.  Co.,  4  Cush.  (Mass.)  152. 

§  3.  Keeping  in  repair.  As  it  regards  the  repair  of  a  canal,  a 
canal  commissioner  has  two  classes  of  duties  imposed  upon  him  ; 
the  duties  of  one  class  are  imperative,  while  those  of  the  other 
depend  on  his  judgment  and  discretion.  In  cases  where  the 
duties  are  imperative  and  absolute,  if  he  neglects  them,  he  is 
responsible  to  any  one  who  suffers  from  his  neglect.  Griffith  v. 
Follett,  20  Barb.  620.  It  is  incumbent  upon  him  to  examine 
such  portion  of  the  canal  as  is  committed  to  his  care,  and  to 
decide,  from  such  examination,  the  necessity  for  any  particular 
repair,  and  act  accordingly.  His  duty  to  repair  is  imperative 
when  there  is  an  obstruction  to  navigation  in  the  canal,  or  when 

Vol.  L  — 93 


738  CANALS. 

there  is  a  breacli  in  the  banks  rendering  passage  upon  it  difficult 
or  impossible.  lb.  See  Follett  v.  People,  17  Barb.  193 ;  S.  C,  12 
N".  Y.  (2  Kern.)  268 ;  French  v.  Donaldson,  57  N.  T.  (12  Sick) 
496. 

If  a  canal  be  built  across  a  private  road,  the  owner  of  the  pri- 
vate road  can  compel  the  canal  owners  to  bridge  it.  HabershaTn 
V.  Savannah,  etc.,  Canal  Co.,  26  Ga.  665.  But  where  a  highway 
is  laid  out  over  a  canal  after  its  construction,  the  owners  of  the 
canal  are  under  no  obligation  at  common  law,  either  to  construct 
or  maintain  a  bridge  over  the  canal.  Morris  Canal  Co.  v.  State, 
4  Zabr.  (N.  J.)  62.     See  King  v.  Kerrison,  3  M.  &  S.  526. 

§  4.  Tolls.  *  As- it  regards  the  right  of  the  proprietors  of  canals 
to  tolls,  the  rule  is  that  they  are  entitled  to  take  them,  only  as 
authorized  by  statute ;  and  any  ambiguity  in  the  terms  of  the 
statute  must  operate  in  favor  of  the  public.  Perrine  v.  Chesa- 
pealie,  etc.,  Canal  Co.,  9  How.  172;  Myers  v.  Foster,  6  Cow. 
567;  Delaware,  etc..  Canal  Co.  v.  Pennsylvania  Coal  Co.,  21 
Penn.  St.  131 ;  Canal  Co.  v.  Wheeley,  2  B.  &  Aid.  792.  Thus,  a 
canal  corporation,  not  having  been  empowered  by  its  charter  to  de- 
mand tolls  on  passengers,  or  on  vessels  by  reason  of  their  pas- 
sengers, cannot  lawfully  exact  such  tolls.  Perrine  v.  Chesa- 
peake, etc..  Canal  Co.,  9  How.  172. 

The  term  "toll"  does  not  necessarily  import  an  immediate 
payment.  As  in  other  cases,  the  period  of  payment  depends  on 
the  understanding  of  the  parties.  Penn.  Coal  Co.  v.  Delaware, 
etc..  Canal  Co.,  29  Barb.  589  ;  S.  C.  affirmed,  3  Abb.  Ct.  App.  470 ; 
1  Keyes,  72.  In  the  absence  of  any  thing  to  indicate  a  different 
intention,  tolls  are  payable  at  the  time  the  amount  is  ascer- 
tainable, without  reference  to  the  times  of  passage.  lb. 

§  5.  Negligence.  A  company  maintaining  for  their  own  profit  a 
canal,  open  to  the  public  for  navigation  on  payment  of  tolls,  are 
bound  only  to  take  reasonable  care  tliat  it  may  be  navigated  with- 
out danger,  and  are  not  responsible  for  accidents  which  do  not 
arise  from  the  want  of  this  reasonable  care.  They  are  not,  like 
common  carriers,  subjected  to  the  responsibility  of  insurers. 
Lancaster  Canal  Co.  v.  Parndby,  11  Ad.  &  El.  223 ;  Exchange 
Fire  Ins.  Co.  v.  Delaware,  etc..  Canal  Co..,  10  Bosw.  (N.  Y.)  180; 
Weitnery.  Delaware,  etc..  Canal  Co.,  4  Rob.  (N.  Y.)  234. 

§  6.  Liability  of  officers  iu  charge.  The  rule  of  law  is  well 
settled,  that  a  contractor  employed  by  the  State  to  put  a  canal 
in  repair  is  liable  to  an  individual  who  sustains  special  damages 
by  reason  of  the  contractor's  neglect  to  perform  his  duty.     Fiol- 


CANALS.  739 

ton  Ins.  Co.  v.  Baldwin,  37  K  Y.  (10  Tiff.)  648 ;  Conroy  v.  Oale, 
5  Lans.  (N.  Y.)  344 ;  RoUnson  v.  Chamberlin,  34  N.  Y.  (7  Tiff.) 
389.  And  it  is  held  that  in  order  to  render  a  canal  contractor 
liable  for  damages  resulting  from  defects  in  a  canal  bridge,  It  is 
not  necessary  to  establish  either  that  the  bridge  was  so  defective 
as  to  be  apparently  so  to  every  body,  or  that  notice  of  its  defect- 
ive and  unsafe  condition  had  been  brought  to  the  contractor  or 
his  agents.  It  is  sufficient  if  it  appears  that  the  defects  were  such 
as  the  contractor  might,  by  reasonable  examination  and  tests, 
have  discovered.  Stack  v.  Banks,  6  Lans.  (N.  Y.)  262  ;  Frencli 
V.  Donaldson,  57  N.  Y.  (12  Sick.)  496. 

The  superintendent  of  repairs  on  a  canal,  negligently  allowing 
an  obstacle  to  remain  in  the  canal  until  he  receives  orders  for  its 
removal  from  the  canal  commissioners,  is  liable  to  parties  whose 
boats  are  damaged  by  the  obstacle.  Shepherd  v.  Lincoln,  17 
Wend.  250  ;  Adsit  v.  Brady,  4  Hill  (N.  Y.),  630.  And  the  fact 
that  a  boat  owner  was  attempting  to  pass  his  boat  through  a 
canal  on  Sunday  in  violation  of  law  will  not  prevent  his  recov- 
ery of  damages  occasioned  by  a  break  in  the  embankment  result- 
ing from  the  negligence  of  the  servants  of  the  canal  company. 
Mc Arthur  v.  Green  Bay^  etc.,  Canal  Co.,  34  Wis.  139. 


INDEX  TO  VOL.  I. 


ABATEMENT:                                                                                                  paqb. 
Of  nuisances 60 

Reasons  for  allowing  abatement  of  nuisances 61 

When  notice  or  request  to  remove  a  nuisance  necessary  before 61 

Of  nuisances  from  omission,  when  allowed 61 

Of  a  private  nuisance  must  merely  restore  former  right 61 

Pulling  down  an  inhabited  dwelling , 61 

Removing  obstructions  from  highways 62 

Pleas  or  answers  in 158 

ABANDONMENT : 

Of  contract  to  marry 726 

ABSCONDING-  DEBTORS: 

Who  are 416 

Intent  necessary  to  constitute 416,  417 

Attachments  against 416 

Meaning  of  the  term  as  used  in  relation  to  attachments 416,  417 

When  attachment  will  lie  against  partners  as 417 

Presentment  of  bills  or  notes  where  makers  or  acceptors  are 635 

ABSENT  DEBTORS: 

Attachments  against 415 

Who  are,  within  the  statutes  relating  to  attachments 415,  416 

ACCEPTANCE  (See  Bills  and  Notes)  : 

Liability  of  drawee  on  acceptance  of  bill  payable  in  chattels 575 

ESect  of  general  acceptance  of  bills  payable  in  chattels 575,  576 

Absolute  or  conditional 576,  625 

Order  for  delivery  of  goods  does  not  require 576 

Holder  of  order  may  require 576 

Distinction  between  bills  and  orders  for  goods  as  to 577 

Not  necessary  where  an  order  is  given  on  a  particular  fund 576,  577 

Of  a  protested  bill  is  valid 592 

Of  bills  after  indorsement 592 

Of  forged  bills 600,  601,  643 

Of  accommodation  paper 610,  617 

Presentment  of  bills  for 618 

Duty  of  payee  of  bill  as  to  presentment  for 619 

Bills  must  be  presented  for,  within  a  reasonable  time 619 

Time  of  presenting  bill  for 619,  620,  632 

Place  of  presentment  of  bill  for 620 

By  destroying  or  refusing  to  return  bill 621 


742  IISTDEX. 

ACCEPTANCE  —  Continued.  page 

Contract  created  by 621,  622 

Who  may  accept  bills 621,  622 

By  partners 622 

Agreements  for 622,  623 

By  parol,  valid  at  common  law 622 

What  constitutes,  in  New  York 623 

On  separate  paper,  when  binding 623 

Promise  to  accept,  when  equivalent  to  .  . .  .■ 623 

Writing  name  across  the  bill,  amounts  to 623 

Of  check,  not  necessary 624 

General  and  conditional  , 625 

Defenses  in  action  against  acceptor 626 

Proceedings  on  non-acceptance 626 

Notice  of  non-acceptance 626-629 

Accommodation  drawer  entitled  to  notice  of  non-acceptance  : 629 

Of  note  of  third  party,  how  far  payment 568,  569 

Of  individual  note  for  partnership  debt 570 

ACCEPTOR  (See  Acceptance  ;  BilU  and  Notes) : 

Defined    536 

Who  may  become  an  acceptor 621 

What  form  of  acceptance  will  bind 622,  623 

Defense  by . .  626 

Liable  on  acceptance  of  forged  bill 508,  600,  626,  643 

Complaint  in  action  against 635,  638 

Presentment  of  bill  to,  for  payment 635 

Should  ascertain  right  of  holder  to  receive  payment  of  bill 642 

ACCIDENT: 

Actions  at  law?  founded  upon 160 

Injuries  resulting  from  unavoidable  accident,  not  actionable 160 

arising  from  negligence,  actionable 160 

In  shooting  at  butts 160 

Accidental  injuries  caused  by  glancing  ball  shot  at  a  mark 160 

Accidental  discharge  of  gun 160 

Accidental  injury  in  prosecution  of  lawful  act 161 

Injuries  in  burning  over  fallow  ground 161 

Accidental  injuries  from  lawful  use  of  fire 161 

In  driving  along  highway 161 

Deposit  of  property  on  lands  of  others  by  flood 161 

Explosion  of  steam-boiler •■   161 

Breaking  away  of  dams 161 

Promise  to  make  reparation  for  damages  resulting  from 162 

Actions  in  equity,  founded  upon 162 

Meaning  of  the  term,  as  used  in  equity 162 

Equitable  jurisdiction,  founded  on 162 

When  equitable  interposition  against,  may  be  invoked 162 

Jurisdiction  once  acquired  will  be  retained 163 

Lost  instruments  under  seal 163 

Foundation  of  equitable  jurisdition  in  case  of  lost  instruments 163 


^  INDEX.  ■  743 

ACCIDENT  —  Continued.  page. 

Remedies  in  case  of  lost  instrument  at  law  and  equity 163 

When  equity  will  relieve  against  loss  of  deed 164 

When  new  deed  of  land  will  be  ordered  executed 164 

Remedy  on  lost  negotiable  notes 165 

Statutory  remedies  of  the  several  States  upon  lost  notes 165 

Actions  upon  lost  notes 166 

Relief  against  penalties  and  forfeitures 167 

Executors  and  administrators,  errors  in  payment 168 

Recovering  back  moneys  paid  under  mistake 168,  169 

Defective  execution  of  powers  resulting  from 169 

In  transfer  of  bills  and  notes 171 

When  no  action  lies 171 

Preventing  fulfillment  of  contract 171 

Covenants  to  repair  where  building  destroyed 171 

Law  rendering  performance  of  contract  more  burdensome,  does  not  excuse 

default 171 

Covenants  to  pay  rent  where  building  destroyed 172 

Arising  from  negligence,  no  ground  for  relief 172 

Where  the  equities  are  equal 172 

Relief  as  between  bona  fide  purchaser  of  legal  title  and  owner  of  equitable 

title 172 

When  an  excuse  for  failure  to  give  notice  of  dishonor  of  bill  or  note 631 

ACCOMMODATION  PAPER  (See  Bills  and  Notes)  : 

Liability  of  maker  or  indorser  of 610,  611,  612,  617 

Drawer  of,  entitled  to  notice  of  non-acceptance , 629 

ACCORD : 

Defined 66 

Requisites  of 66 

Eflfect  of  accord  and  satisfaction 66 

ACCOUNTING: 

Actions  relating'  to,  or  founded  upon 173 

Action  of  account  obsolete  at  law 173 

When  the  common-law  action  would  lie 173 

When  the  action  does  not  lie 173 

Actions  of  account  in  equity 174 

Jurisdiction  of  courts  of  equity  over 174    175 

No  remedy  at  law 174 

Mutual  accounts 175 

Equity  will  entertain  jurisdiction  where  accounts  are  complicated,  though 

assumpsit  would  lie 176 

Where  items  are  all  on  one  side 175,  176 

Appropriation  of  payments 176 

Party  paying  has  the  right  of  appropriation 177 

Creditor  may  make  appropriation  if  debtor  does  not 177 

Law  makes  appropriation  where  parties  do  not 177 

Application  of  payments  according  to  priority  of  time 177 

Effect  given  to  the  intention  of  parties  in  making  appropriation  of  pay- 
ments    177 


744  INDEX. 

ACCOUNTING  —  Continued.  page. 

Application  of  payment  to  unsecured  demand ,  .  ,    177 

General  payment  not  applicable  to  illegal  demand ,    .    . .  177 

Application  to  debt  within  the  statute  of  frauds ...  177 

Application  to  debt  barred  by  statute  of  limitations 177 

Application  after  discharge  in  bankruptcy 178 

Payment  by  partner,  when  applied  to  individual  debt , ,  . .  178 

Presumption  where  there  are  a  variety  of  transactions  in  one  general  ac- 
count    178 

Between  principal  and  agent 178,  252' 

When  agent  may  be  compelled  to  siibmit  to 179 

Apportionment 180 

Apportionment  of  entire  contracts 180,  181 

Apportionment  of  apprentice  fee 181 

Apportionment  of  rent 181,  182 

Contribution 182 

(See  Contribution.) 

Foundation  of  the  doctrine  of  contribution 182 

No  right  of  contribution  between  wrong-doers 183 

Contribution  between  purchasers  of  mortgaged  pi'emises 183 

Doctrine  of  general  average 183 

Contribution  between  sureties 184 

Liens 186 

Accounts  pertaining  to  rents  and  profits 186 

In  cases  of  waste 187 

When  no  action  can  be  maintained 187 

Defenses  to  action  of 188 

ACCOUNTS : 

What  is  a  matter  of  account - .  189 

What  is  not  a  ndatter  of  account 189 

Books  of  account,  how  kept 190 

Form  of  charge  immaterial 190 

Books,  how  proved 190 

Proof  of  book  account  in  New  York 191 

ACCOUNTS  STATED : 

Actions  upon,  or  relating  to,  an  account  stated 191 

Open  account  defined 191 

Stated  account  defined 191 

Requisites  of  a  stated  account 191 

Account  rendered  as  an  admission 192 

Conversion  of  open  account  into  an'  account  stated 192 

Proof  of  account  stated 192 

Infant  not  bound  by  account  stated 192 

Need  not  be  signed 192 

Need  not  be  mutual  or  cross  demands 193 

When  an  acknowledgment  of  indebtedness  will  amount  to 193 

Effect  of  admisioiis  of  correctness  of  an  account 193 

Effect  of  retaining  a  statement  of  an  account  without  objection 193,  194 

Conclusiveness  of 195 


INDEX.  745 

.4.CC0TJNTS  STATED  —  Continued.  page. 

Not  an  estoppel 195 

May  be  impeached  for  mistakes  or  errors 195 

Is  binding  on  guarantor  if  binding  on  original  parties 195 

Balance  struck  on  hearing  before  referee 196 

Opening  an  account  stated  not  favored 196 

When  equity  will  or  will  not  open 196,   197,  198 

Opening  settled  accounts 197 

Effect  of  delay  in  detecting  errors 197 

Mistake  in  law  no  ground  for  opening  settled  account 197 

Not  opened  after  books  of  one  party  destroyed 197 

Account  not  opened  after  sale  on  execution 197 

Opening  account  examined  by  both  parties 197 

Stale  accounts  not  examined 198 

Proof  of  fraud  sufficient  ground  to  open 198 

ACQUIESCENCE : 

In  boundary  lines,  effect  of 717 

ACTIONS  (See  Courts  of  Law  and  Courts  of  Equity)  : 

Nature  and  definition  of 9 

Classification  of  civil  actions 10 

Definition  of  a  civil  action 10 

Eequisites  to  the  maintenance  of 10 

■     Who  may  bring » 10 

Distinctions  between  actions  and  suits 10,  12 

Real,  personal  and  mixed 11 

Ex  contractu  and  ex  delicto ■ 11 

Local  and  transitory 11 

In  personam  and  in  rem 11 

Legal 12 

Defects  in  legal  rules  and  principles,  how  supplied 12 

Nature  of  common-law  remedies 12 

At  law  relate  to  some  act  done 13 

Wrongful  act  must  be  committed  to  sustain 13 

Remedies  obtainable  in 13,  14 

Compensation  in  damages  given  in 14 

Violation  of  a  right  not  prevented  in 14,  15 

Relief  in,  remedial,  not  preventative 14 

Afford  no  relief  outside  of  general  rules . . . .' 14 

Judgments  in,  uniform,  simple  and  invariaWe 14 

Specific  performance  not  compelled  in 15 

Legal  rules  not  adapted  to  equitable  cases 16 

Termination  of  powers  of  court  in 16 

Extension  of  remedies  by  common  law 16 

Exceptions  to  general  legal  rules 17 

Tries  questions  of  fact  by  a  jury 18 

Legal  remedies  may  exist,  and  yet  be  insufficient 19 

Legal  and  equitable  remedies  in  specific  cases  contrasted 19 

Equitable  actions  or  suits 20 

Courts  of  equity  act  on  the  person  independently  of  damage,  as  a  remedy,  20 

Vol.  I. —94 


746  INDEX. 

ACTIONS  —  Continued.  page. 

May  be  maintained  to  prevent  a  violation  of  a  right 20 

Advantages  of  equitable  over  legal  remedies 21,  22,  23 

Compelling  person  to  convey  lands  situate  in  another  State 21 

To  compel  performance  of  acts  specifically 21 

To  restrain  commission  of  wrongful  acts 23 

Character  of  relief  obtained  in . . . 24,  25,  26 

No  absolute  right  to  trial  by  jury  in 24 

Governed  by  well-settled  rules  and  principles 26 

Mode  of  rehef  in 28 

General  rules  and  maxims  of  equity 28 

The  uniou  of  legal  and  equitable  remedies 29 

Mode  of  uniting  the  two  systems .' 29 

Principles  of  law  and  equity  unchanged ■ 30 

Powers  of  the  court  not  enlarged  by  union  of  the  two  systems  of  practice,  31 

Efifect  of  the  union  on  proceedings  in  Federal  courts 31 

Joinder  of  actions,  whether  legal  or  equitable 32 

The  right  of  action  35 

General  considerations  as  to  the  right  to  maintain 35 

Malice  in  the  doing  of  a  legal  act  does  not  give  right  of  action 35 

Injuries  sustained  from  acts  done  by  consent 36 

Existence  of  facts  sufficient  to  sustain • 36 

For  injuries  to  the  person,  or  personal  rights 37 

Relating  to  property,  real  or  personal 37 

Founded  upon  contracts 38 

What  torts  are  actionable 2,  38 

Injuries  for  which  no  action  hes  38,  39 

Damages  too  remote  to  give  right  of 39 

Contributory  negligence  of  the  plaintiff 40 

Continuing  tortious  acts 40 

Existence  of  the  right  of 40 

Matters  to  be  considered  before  bringing 41 

Cumulative  or  exclusive  remedies 42 

When  statutory  remedy  only  can  be  followed 42 

Illegality  of  ground  of 43 

Leave  to  bring  or  defend , 43 

Parties  to 43 

Pleadings  in 44 

Evidence  in '. 44 

Jurisdiction  of 44 

(See  Jurisdiction.') 

Remedies  without  action 52 

(See  Remedies.) 

Foanded  upon  torts 38,  131 

(See  Torts.) 

For  violation  of  a  legal  right 132 

For  violation  of  a  public  duty 133 

For  breach  of  private  compact  or  duty 134 

For  torts  flowinpf  from  contract 135 


INDEX.  747 

ACTIONS— Conimwed  page. 

Privity  as  an  ingredient  in  actions  for  tort 136 

On  false  warranties 137 

Por  fraud  and  deceit   138 

Novelty  of 140 

Fictitious 141 

For  damages  arising  from  illegal  or  wrongful  acts 142 

Rightful  act  no  ground  of 143 

Legislative  authority  for  acts  done 145 

Consent  of  injured  party  a  bar  to .' 146 

Demand  or  notice  before 146 

Splitting  causes  of 146 

Damages  not  caused  by  wrongs  give  no  right  of  146 

Wi-ongs  without  damage,  actionable 147 

Damages,  when  too  remote  to  maintain 148 

General  principles  relating  to  the  defense  of 157 

Defenses  generally 157 

Pleas  or  answers  in .' 158,   159 

Founded  upon  accident 160 

(See  Accident.) 

On  lost  bills  and  notes 165,  166,  602,  603 

On  lost  instruments  under  seal 163 

Belatiug  to  or  founded  upon  an  accounting 173 

(See  Accounting.) 

Relating  to  accounts,  or  accounts  stated 189 

(See  Account.) 

For  adultery 199 

(See  Adultery.) 

Upon  bonds 695 

(See  Bonds.) 

For  breach  of  promise  to  marry 722 

(See  Breach  of  Marriage  Promise.) 
ACTIONABLE  WRONGS.  (See  Torts.) 
ADMINISTRATION.  (See  Assets,  Administration  of.) 
ADMINISTRATORS : 

Contracts  by  78 

Equitable  relief  against  errors  in  payment  by 168 

Attachments  against 421 

May  indorse  note  of  intestate 587 

Transfer  of  note  by  one  of  several,  a  transfer  by  all 587 

When  liable  on  their  indorsement 588 

Bound  by  bond  of  their  intestate 670 

ADMISSION  (See  Attorneys) : 

Of  attorneys .^ 431 

By  attorneys 440 

ADULTERY : 

Actions  for 199 

Proof  of  marriage 198 


748  INDEX. 

ADULTERY  —  Continued.  page. 

At  common  law  a  mere  civil  injury 199 

Action  of,  may  be  maintained  after  dissolution  of  marriage 199 

Husband  must  be  without  fault  to  maintain  action  for 199 

Consent  or  connivance  of  husband  defeats  action 200 

How  far  separation  by  agreement  affects  right  of  action 200 

111  treatment  of  wife  goes  to  the  question  of  damages,  but  not  to  the  right 

of  action ; 200 

On  the  part  of  the  husband  affects  the  question  of  damages  only 201 

Condonation  of  offense  does  not  bar  action 201 

Proof  of 201 

Proof  of  adultery  generally  presumptive 201 

From  what  acts  and  circumstances  adultery  may  be  presumed 201 

Confessions  of  wife  not  evidence  against  defendant 202 

Letters  of  wife,  how  far  evidence 202 

Damages  in  action  for 203 

Damages  measured  by  injury  sustained 203 

What  are  circumstances  of  aggravation 203 

What  may  be  shown  in  mitigation  of  damages 204 

Death  of  wife  pending  action  for 204 

ADVANCEMENT : 

General  rules  relating  to 205 

Defined 205 

Voluntary  transfer  of  property  whether  a  gift  or 205 

When  conveyance  of  land  by  parent  to  child  constitutes 205,  206 

What  is  not 206 

Creates  no  debts  to  the  person  making  it 206 

Trifling  gifts  not  charged  as 206 

A  gift  for  the  purpose  of  pleasure  is  not 207 

Moneys  expended  for  education  of  child 207 

In  what  made  207 

To  whom  made 207 

Grifts  to  grandchildren 207 

By  whom  made 207 

Value  of,  how  estimated 208 

Presumptions  as  to • 208 

Parol  evidence  to  show 209 

Presumption  of,  how  rebutted 210 

No  particular  form  of  words  necessary  to  constitute 210 

Hotchpot  defined  and  considered 210 

Failure  of 212 

Interest  on,  not  allowed 212 

AGENCY: 

General  principles  relating  to  principal  and  agent 213 

Nature  of  an  agency 213 

Who  may  be  a  principal 214 

Cannot  be  created  by  persons  under  disabilities 214 

When  married  woman  may  create 214 

Who  may  be  an  agent 214 


INDEX.  749 

AQ-ENCT  —  Continued.  page. 

Persons  under  disabilities  may  be  agents 214 

Wife  may  be  agent  of  husband 214 

Husband  may  be  agent  of  wife 215 

Effect  of  war  on 215 

To  do  an  illegal  act 215 

Cannot  be  created  by  partner  for  performance  of  partnership  duties 215 

Agent  cannot  delegate  his  authority 215 

General  and  special  agencies 216 

Special  agent  may  have  general  authority  in  respect  to  a  particular  thing. .   216 

Different  kinds  of  agents 217 

Authority  conferred  on  two  or  more  agents,  how  exercised 218 

Appointment  of  agents 218 

When  the  appointment  of  the  agent  must  be  by  deed  or  under  seal 218 

When  appointment  may  be  by  parol 219 

Appointment  by  corporations 219 

Express  or  implied  authority  of  agents 219 

Katification  of  unauthorized  acts 219 

Nature  and  extent  of  agent's  authority 220 

Acts  of  agent  within  the  scope  of  his  authority 220 

Implied  authority  of  agents 221,  222 

Authority  of  a  cashier  of  a  bank 221 

Authority  of  agent  employed  to  collect  a  debt 221,  224,  225 

Authority  of  agent  employed  to  make  purchases 222 

Authority  of  agent  employed  to  sell  lands 222 

Authority  to  sell  implies  authority  to  warrant 222 

Authority  to  sell  upon  credit 223 

Authority  of  merchants'  clerk 223 

Limitation  of  powers  of  agents  acting  under  special  authority 223 

Authority  to  draw  checks,  not  authority  to  overdraw 223 

Authority  of  agent,  when  limited  224 

Construction  of  general  terms  granting  authority 224 

Power  of  attorney  to  sell  eflfects  does  not  authorize  sale  of  lands 225 

Verbal  authority  to  sell  lands  does  not  give  power  to  contract 225 

Construction  of  powers  of  attorney 225,  226 

General  agent  cannot  employ  counsel  for  servant  of  his  principal 226 

Power  of  agent  to  bind  principal  for  medical  aid. 226 

Notice  of  extent  of  agent's  authority 226 

Where  authority  of  agent  is  a  matter  of  record 227 

Effect  of  private  instructions  to  agent 227 

Principal  bound  by  acts  within  apparent  authority  conferred 228 

Ambiguous  authority  construed  against  principal 228 

Usage  or  custom  as  a  means  of  interpreting  the  authority  of  agents. .  228,  229 

Parol  evidence  to  enlarge  authority 229 

Written  authority  not  enlarged  by  evidence  of  usage 230 

Acts  to  be  done  in  a  foreign  country  or  State 230 

Extent  of  authority,  how  far  implied 230 

Authority  must  be  implied  from  facts  which  have  occurred 231 

Silence  may  be  construed  as  an  authority 231 

Knowledge  of  agent,  knowledge  of  principal 231 


750  INDEX. 

AGrENCT  —  Continued.  page. 

Exercise  of  extraordinary  powers  in  emergencies 232 

Ratification  of  assumed  authority 232 

Ratification  by  principal  after  full  knowledge  equivalent  to  express  authority,  232 

Ratification  must  be  entire 233 

Ratification  of  part  of  unauthorized  transaction  is  a  confirmation  of  the  whole,  233 

Ratification  of  unauthorized  act  under  mistake 233 

No  ratification  possible  where  there  is  no  assumption  of  agency 233 

Retaining  fruits  of  unauthorized  act,  a  ratification 234 

Ratification  once  made  cannot  be  re-called 234 

Notice  of  dissent  must  be  given  within  a  reasonable  time 234 

Ratification  relates  back  to  original  transaction 234 

When  ratification  must  be  under  seal 234- 

Agent's  declarations  do  not  prove  authority 234 

Duties  of  agents 235 

Agent  must  act  in  person 235 

I  Agent  cannot  delegate  power  requiring  the  exercise  of  judgment  and  dis- 
cretion     236 

How  an  agent  should  exercise  his  authority , 236 

Business  of  the  agency  should  be  transacted  in  name  of  the  principal ....  236 

Sealed  instrument  must  be  executed  in  name  of  principal 237 

Execution  of  instruments  not  under  seal 237 

Execution  of  commercial  contracts  and  paper 238 

Personal  liability  of  agent  how  avoided 238 

Parol  evidence  to  charge  principal 238,  239 

Coupled  with  an  interest 239 

Agent  must  act  within  the  scope  of  his  authority 240 

"What  diligence  and  skill  required  of  an  agent   240 

Agent  contracts  for  reasonable  skill  and  ordinary^diligence 240 

What  is  reasonable  skill 241 

What  is  ordinary  diligence 241 

Knowledge  of  principal  of  incompetency  of  agent 241 

Incidental  duties  of  agents 241 

Agent  should  keep  his  principal  informed  of  his  acts 241 

Agent  should  not  mix  funds  of  his  principal  with  his  own 241 

Transactions  of  agents 242 

Duty  of  agent  to  adhere  to  instructions 242 

Liability  of  agent  for  unauthorized  acts 242 

Unauthorized  acceptance  of  conditional  acceptance  of  bill 625 

Duty  of  principal  to  give  clear  instruction  to  agent 242 

Intent  to  benefit  principal,  no  excuse  for  disregarding  instructions 242 

Agent  not  bound  to  do  immoral  or  illegal  act 243 

Principal  responsible  for  authorized  illegal  act » . . .  243 

Efi'ect  of  usage 243 

Conformity  to  usage,  in  absence  of  instructions ...    243 

Sub-agents  or  substitutes 243 

Liability  of  agent  for  acts  of  substitutes 244 

Persuraed  authority  of  bank  to  employ  sub-agent  to  collect  draft  at  place  of 

payment 244 

Negligence  of  bank  in  collection  of  a  note 244 


'  .  INDEX.  761 

AGENC  V  —  Continued.  page. 

Implied  authority  to  employ  auctioneer  to  make  sale 244 

Losses,  by  whom  borne 244 

Principal  must  bear  losses  occurring  in  course  of . . .    244 

Agent  not  responsible  for  insolvency  of  purchasers 245 

Eeceiving  confederate  money  in  payment 245 

Loss  of  money  forwarded  by  letter 245 

Liability  of  agent  for  moneys  deposited  to  the  credit  of  principal 245 

Adverse  interest  by  agent  not  tolerated 245 

Agent  cannot  act  for  his  principal  and  himself 246 

Agent  employed  to  purchase  cannot  sell  his  own  property 246 

Agent  employed  to  sell  cannot  purchase 246 

Cannot  act  as  agent  for  two  parties  having  adverse  interests 247 

When  attorney  may  act  as  counsel  for  adverse  parties 247 

Agent  for  purchaser  and  seller 247 

Eeal  estate  agent  may  act  for  buyer  and  seller 247 

Employment  of  agent  of  another,  with  knowledge  of  agency 248 

Profits  of  business  belong  to  employer 248,  249 

Principal  not  entitled  to  mere  gifts  to  agent 249 

Liability  of  ag-eiits  to  their  principals 249 

Liability  of  agent  for  neglect  of  duty  and  want  of  skill  and  diligence.  . . .  250 

Contracts  of  sale  between  principal  and  agent 250 

Cannot  be  purchaser  at  sale  caused  by  his  fraud  or  neglect 250 

Liability  for  injuries  to  goods  deposited  in  improper  place 250 

Liability  of  warehousemen  for  neglect  of  servants  to  rescue  goods  from 

fire 250 

r 

Liability  of  agent  for  mistake  in  satisfaction  of  a  mortgage  of  his  prin- 
cipal      250 

Liability  of  agent  for  bad  faith  and  mismanagement 251 

Eeceipt  of  depreciated  currency  for  debt 251 

Liability  of  cashier  for  neglect  by  which  an  indorser  of  a  note  is  discharged  251 

Liability  of  banks  for  negligence , 251 

Agent  not  liable  unless  there  be  real  and  not  probable  loss 252 

Accounting  by  agents 178,  252 

Duty  of  agent  to  keep  and  render  account  of 252 

Presumption  from  refusal  to  account 252 

Agent  should  give  notice  of  collections  made 252 

Agent  chargeable  with  interest  on  moneys  collected  252 

Agent  bound  to  pay  over  moneys  collected   252 

Agent  cannot  set  up  title  in  a  stranger  to  moneys  collected 253 

Must  pay  over  moneys  paid  to  him  on  illegal  contract 253 

V/hen  demand  is  necessary  to  render  agent  liable 253 

When  demand  necessary  to  render  attorney  hable  to  action 254 

Defenses  of  agents  against  pi*inci])als 255 

Illegality  a  defense  for  refusal  to  act 255 

Illegality   of    transaction   no   defense   against  action   to   recover  moneys 

received 255 

If  no  damages  results  from  breach  of  instructions  no   action  lies 255 

Breach  of  instructions  from  necessity,  a  defense 255 

Ratification  by  principals  a  defense 256 


752  INDEX. 

AGrENC  Y  —  Continued.                                                                                        PAGa 
Liability  of  agents  to  third  persons  on  contracts 256 

A  known  agent  is  not  personally  responsible 256 

Agent  may  assume  personal  liability 256 

Agent  may  be  liable  on  his  express  warranty 257 

Liable  on  note  given  in  his  own  name , . . .  257 

Liable  on  note  signed  in  his  own  name  as  agent 257 

Liable  on  contracts  for  labor  made  in  his  own  name 257 

Agent  personally  liable  for  acts  in  excess  of  his  authority 257 

Agent  not  liable  on  unauthorized  contract  which  CQuld  not  be  enforced  if 

authoriz-ed 258 

Liable  to  third  persons  for  unwarranted  assumption  of  authority 258 

Action  for  fraud  and  deceit  lies  for  false  assumption  of  authority 258 

Action  against  agent  on  implied  warranty  of  authority 258 

Person  inducing  agent  to  exceed  his  authority  cannot  enforce  unauthor- 
ized contract , ' 258 

Personal  liability  for  not  disclosing  agency 258 

Real  principal  liable  when  discovered 259 

Agent's  liability  to  a  foreign  principal 259 

Intent  to  assume  personal  liability 259 

Liability  of  agent  contracting  in  his  own  name 259 

Agent  not  liable  where  exclusive  credit  not  given  him 260 

Liability  of  public  agents  on  contracts  made  by  them 260 

Public  agent  generally  not  personally  liable 260,  261 

No  presumption  that  public  agent  intends  to  bind  himself 260 

When  a  public  agent  is  not  liable 261,  262 

Liability  of  public  agent  for  refusing  to  pay  moneys 262 

When  a  public  agent  is  liable  upon  contracts 262 

Liability  of  government  or  principal 263 

Liability  of  agent  for  torts 263 

Omissions  of  duty  do  not  render  agent  personally  liable  to  third  persons. .  263 

Principal  when  liable  to  third  persons  for  misfeasance  of  agent 264 

Liability  of  principal  for  misrepresentations  of  agent ; 264 

Shipmaster  liable  for  goods  stolen  by  crew 264 

Telegraph  company  liable  for  negligence  of  operator .,....» 264 

Maxim  respondeat  superior  applied 264 

Principal  may  recover  from  agent  sums  paid  on  account  of  his  neghgent 

acts 264 

Liability  of  agent  for  unauthorized  willful  injuries 264 

Principal  not  liable  for  unauthorized  willful  trespass  of  agent 264 

Agent  liable  for  unlawful  act  done  under  the  direction  of  his  principal  .  . .  265 

Liability  of  agent  for  acts  done  by  his  employees 265 

Liability  of  banks  for  negligence  of  other  banks ;  265 

Liability  of  bailee  for  negligence  of  servants 266 

Liability  of  persons  receiving  notes  for  collection,  for  negligence   266 

Agent  when  not  liable  for  torts 266 

Principal  when  not  liable  for  agent's  willful  torts 266 

Liability  of  public  agents  for  torts • 267 

Liability  of  public  agents  for  torts  of  servants 267 

Big^hts  of  agents  in  regard  to  their  principals 2C8 


INDEX.  753 

AGENCY  —  Continued.  page. 

Compensation  of  agent  where  there  is  no  express  agreement 268,  269 

Compensation  o£  agent  discharged  before  his  term  of  employment  has 

expired 268 

Salary  of  agent  for  services  after  contract  time 268 

Right  to  extra  wages  for  new  duties 269 

Compensation  for  gratuitous  services  of  agent 269 

Compensation  to  be  made  by  will 269 

Compensation  of  agent  by  commission 269 

Services  must  be  performed  before  payment 270 

Compensation  where  the  principal  has  prevented  performance 270 

Recovery  by  agent  of  commissions  earned , . .  270 

Faithful  discharge  of  duty  before  payment 271 

Adverse  interests,  or  acting  for  two  parties  forfeits  compensation 271 

Reimbursement  and  indemnity  of  agents 271 

Agent  cannot  recover  needless  advances 272 

Loss  or  damage  sustained  for  principal 272 

Loss  occasioned  agent  by  deception  of  principal 272 

Damages  sustained  by  following  direction  of  principal 272 

What  will  entitle  agent  to  claim  remuneration  from  principal 273 

No  indemnity  to  agent  for  damages  from  illegal  acts 273 

Power  of  agent  to  pledge  goods   273 

Lien  of  agents 273 

Agent's  lien  in  general 273 

Particular  liens  of  agents 273 

General  liens  of  agents 274 

Lien,  how  acquired 274 

Agent  cannot  pledge  principal's  goods  to  secure  his  own  debt 275 

No  lien  on  goods  in  agent's  hands  without  owner's  consent , 275 

Essentials  to  constitute  a  valid  lien 275 

Upon  what  demands  a  lien  may  be  had 275 

Waiver  of  lien,  or  right  to  it 276 

Constructive  possession  sufficient  for  the  purposes  of  a  lien ....    276 

Enforcing  liens 277 

Sale  of  property  to  satisfy  the  lien 277 

Nature  of  lien  of  mechanic 277 

Lien  of  sub-agent 277 

Rights  of  agents  as  to  third  persons 278 

Right  of  agent  to  sue  in  his  own  name  278 

Action  upon  note  or  other  instrument  made  payable  to  the  agent 279 

Action  by  collecting  agent  upon  negotiable  note  indorsed  in  blank 279 

Principal  may  control  action  brought  in  name  of  agent 280 

Principal  not  allowed  to  control  action  to  injury  of  agent 280 

Same  defenses  in  action  by  agent,  as  if  brought  by  principal 281 

Agent  may  sue  for  tort  of  third  person 281 

Rights  of  principals  against  third  persons 281 

Rights  of  principals  on  agent's  contracts , 282 

Enforcement  of  contract  made  in  name  of  principal 282 

Enforcement  of  contracts  where  principal  was  not  disclosed 282 

Payments  to  agents 282 

Vol.  I.  — 95 


754  INDEX. 

AGENCY  —  Contimied.  page. 

When  payment  to  agent  is  deemed  payment  to  principal 283 

Power  of  agent  to  receive  payment  for  his  principal 283,  284 

Payment  by  agent  for  principal 284 

Injuries  to  property  in  agent's  hands 285 

Wrongful  sales  or  transfers  by  agent 285 

Rights  to  third  persons  against  principals 285 

Rights  of  third  persons  on  agent's  contracts 286 

Liability  of  principal  who  has  clothed  agent  with  apparent  power  to  con- 
tract   286 

Rights  of  third  persons  on  unauthorized  but  ratified  contracts 286,  287 

Liability  of  telegraph  companies  for  errors  of  agents 287 

Liability  of  carriers  for  goods  delivered  to  their  agents 287 

Principal's  liability  for  torts  of  agent 287 

Principal  liable  for  wrongful  acts  committed  under  his  direction 287 

Principal  liable  for  negligent  performance  of  duty  by  agent 287 

Principal,  when  liable  for  fraud  of  agent 287 

Principal  liable  for  ratified  wrongful  act  of  agent. 288 

Principal  not  liable  for  tvillful  tort  of  agent 288 

Principal  liable  for  mistakes  of  agent 288 

Termination  of  agent's  authority 289 

Revocation  of  authority  by  principal 289 

May  be  terminated  at  any  time 289 

Created  under  seal  may  be  revoked  by  parol 289 

Coupled  with  an  interest  irrevocable 289 

Mode  of  revocation 289 

When  revocation  takes  effect 290 

Renunciation  of  agent 290 

Termination  of,  by  operation  of  law 290 

Insanity  of  principal,  a  revocation  of 290 

Revocation  by  death  of  principal 290 

Revocation  by  death  of  agent 291 

Accounting  between  principal  and  agent 178 

Indorsement  by  agent 593 

AGENT.   (See  Agency.) 

AMBIGUITY : 

In  bills  and  notes 565 

In  contracts  generally 124 

ANCIENT  LIGHTS: 

English  rule,  as  to 292 

Right  by  presci'iption  to  enjoyment  of 292 

Statutory  rule  in  England  in  relation  to 293 

Implied  grant 293,  294 

Where  title  of  adjoining  proprietors  springs  from  common  source 294 

American  cases  similar  to  English  rule 294 

States  in  which  the  English  rule  prevails 295 

Implied  grant 295 

American  rule,  as  to 296 

English  rule  inapplicable  to  our  institutions 296 


INDEX.  755 

ANIMALS :  '  page. 

Ownership  of. 298 

Definition  and  general  princtples 298 

What  animals  are  subjects  of  property 298 

Wild  animals  are  not  subjects  of  property 298 

May  be  absolute  .property  in  tame  animals 298 

Wild  animals,  when  captured,  become  property 298 

Wild  geese,  when  tamed,  are  property 298 

Bees,  when  hived,  are  property 298 

Dogs  and  cats  are  a  species  of  property 298,  299 

Doves,  when  property < 299 

Pigeons,  partridges,  turkeys  and  peacocks 299 

Oysters  planted  in  beds 299 

Wild  animals  tamed  or  confined,  are  property 299 

What  animals  are  not  subjects  of  property 299 

Title  to  animals,  how  acquired 300 

Property  in  wild  animals  is  in  owner  of  lands  and  not  in  captor 300 

Wild  bees  in  bee-trees  belong  to  the  owner  of  the  soil 300 

Rights  of  the  finder  of  wild  bees 300 

Owner  of  bees  retains  title  so  long  as  he  can  identify  them 301 

Title  to  oysters  acquired  by  planting 301 

Ownership  of  increase  of  domestic  animals 301 

Pursuit  of  wild  animals  does  not  confer  title 301 

Title,  how  transferred  or  lost 302 

Eights  of  owners  or  possessors  of 302 

Wrongfully  taking 302 

Detention  of  escaped  horses,  by  officer 303 

Rights  of  owner  of  land  trespassed  upon  by 303 

Injuriously  using  a  horse  estray 303 

Wrongful  destruction  of 303 

Action  for  injuring  or  killing  dog,  maintainable. 303 

Action  lies  for  unlawfully  killing  a  cat 304 

Unlawfial  killing  of  chicken-eating  hog 304 

Sale  of  poisoned  hay 304 

Wrongful  killing  of  animals  generally 304 

Injuries  to  cattle  trespassing 305 

Wrongful  injuries  to 305 

Setting  dogs  on  horses 305 

Killing  stock  on  unfenced  railroads 305 

Collisions  in  the  highway 305 

Over-driving  hired  horse 305,  306 

Wrongful  conversion  of 306 

Hiring  horse  to  go  to  one  place  and  going  to  another 300 

Rights  as  to  mode  or  place  of  keeping 306 

Pasturing  sheep  having  infectious  disease 306 

Communicating  disease  to  cattle  of  others 307 

Hooking  cows  and  kicking  horses 307 

Duties  and  liabilities  of  owners  or  possessors  of 307 

Duty  of  owner  to  keep  cattle  from  trespassing 307 

Owner  not  liable  for  trespass  of  cattle  in  care  of  agistor 308 


756  INDEX. 

ANIMALS—  Continued.  page. 

Injuries  caused  by  frightened  horses 308 

Injuries  to  persons  by  domestic  animals .'- 308 

Injuries  by  animals  known  to  be  vicious 308 

Injuries  from  ferocious  dogs 309 

Injuries  from  negligent  driving 309 

Injuries  to  animals  by  domestic  animals , 309 

Injuries  to  horses  by  being  kicked  by  others  through  a  fence 310 

Liability  of  agistor  of  cattle  for  injuries  to 310 

Injuries  by  yv\\& 310 

Owner  of  tame  bear  liable  for  injuries  done 311 

Horse  frightened  by  elephant 311 

Knowledge  by  owner  of  vicious  habits 311 

When  knowledge  of  vicious  habits  must  be  proved 312,  313 

Vicious  dogs  are  a  nuisance 313 

Negligently  permitting  a  horse  to  run  loose  in  a  city  sti;eet 313 

Proof  that  dog  has  previously  bitten  some  one,  unnecessary 314,  315 

Knowledge  of  the  wife  is  knowledge  of  the  husband 315 

Agent's  knowledge  of  viciousness  of I 316 

Possessor  of  animal  liable  for  injuries  committed  by  him 316 

Injuries  by  stray  dogs  temporarily  on  premises 316 

Injuries  by  trespassing  animals 316 

Injuries  to,  from  neglect  to  fence 317 

Communicating  diseases  to 317 

Injuries  by  animals  of  different  owners , 318 

No  contribution  as  between  joint  owners  of 319 

Statutory  liability  of  owners  of 319 

Rights  of  third  persons  to  kill 320 

Right  to  kill  ferocious  dog 320 

Killing  barking  and  howling  dogs 820 

Killing  animals  of  others  to  protect  your  own 320 

Killing  dog  chasing  hens  or  sheep , 320,  321 

Killing  an  ass  to  save  a  cow 321 

May  protect  property  from,  notwithstanding  game  laws 321 

To  protect  his  property  from  trespass 321 

ANNUITIES: 

General  rules  relating  to 323 

Nature  and  definition  of 323 

Distinction  between  annuity  and  rent  charge 323 

Distinction  between  annuity  and  income 323 

How  created 324 

Consideration  for 324 

Payment  of 325 

Enforcement  of  payment  of 325 

How  determined 326 

When  determined  by  death     326 

Given  in  restraint  of  marriage 326 

May  be  purchased 326 


INDEX.  757 

APOTHECARY:                            ^  page. 

Liable  for  injuries  resulting  from  his  negligence 136 

APPEARANCE  (See  Attorneys) : 

Attorney's  authority  presumed 456 

Proof  of  retainer 457 

Unauthorized 458 

APPLICATION  OF  PURCHASE-MONEY': 

Purchaser,  in  what  cases  bound  to  see  to 327 

Where  trust  is  specific 327 

Where  the  tru*t  is  general  and  indefinite 328 

Collusion  or  fraud  of  purchaser 328 

Purchaser  of  personal  property  has  no  interest  in . .  328 

Purchaser  of  real  estate  must  see  to 329 

Purchaser  under  a  decree  has  no  interest  in   329 

Where  there  is  a  devise  of  real  estate  for  the  payment  of  debts.  .  .  .   329,  330 

Where  discretion  is  to  be  exercised  by  trustee 330 

Where  the  testator  reposes  the  trust  of  making,  in  trustee 330 

APPORTIONMENT  (See  Accounting)  : 

Of  entire  contracts 180 

Of  apprentice  fee • 181 

Of  rent '. 181 

Of  rent  service 182 

APPRENTICE  : 

Homicide  in  defense  of,  justifiable 55 

Apportionment  of  fees  of 181 

APPROPRIATION  (See  Accounting) : 

Of  payments 176 

Debtor  has  first  right  of 177 

Creditor  may  exercise  right  of,  if  debtor  does  not 177 

If  not  made  by  parties,  made  by  law 177 

General  rules  as  to  appUcation  of  payments *. 177 

ARBITRATION : 

Defined 66 

ARREST : 

Without  warrant 56 

Resistance  to  illegal 57 

ARSON : 

Killing  of  person  committing '. 54 

ASSAULT  AND  BATTERY: 

What  is  an  assault 332 

What  is  an  assault  with  a  gun  or  pistol 332 

Attempting  to  ride  over  another  person  is  an  assault 332 

Throwing  missile •  •  • 333 

Threatening  or  menacing  conduct  or  advances 333 

Attack  upon  a  horse  driven  by  another 333 

Cutting  hair  of  pauper  in  the  poor-house 333 


758  INDEX. 

ASSAULT  AND  BATTERY  —  Continued.  page. 

Striking  at  one  man  and  hitting  another 333 

Putting  drugs  into  coflFee 333 

.    Indecent  liberties  with  female  pupil  or  patient 333 

What  is  not  au  assault 333 

Mere  threats  are  not  assaults 333 

Words  accompanying  acts  may  disprove 333,  334 

Mere  drawing  of  a  pistol  is  no  assault 334 

Acts  done  in  self-defense 334 

Preventing  a  person  from  passing  along  the  highway,  by  threats,  is  an 

assault > 334 

Separating  persons  fighting 334 

What  is  a  battery 335 

Every  battery  includes  an  assault 335 

Wounding  and  mayhem  336 

Mayhem  defined 336 

Defenses,  excuses  and  justification  of 337 

Accident,  when  a  defense  to  action  for 337 

In  self-defense,  justifiable 337 

Firing  pistol  in  self-defense  and  wounding  bystander 338 

When  self-defense  may  be  urged  in  justification  for 338 

In  defense  of  another 338 

In  defense  of  land,  house,  etc 339 

Eesistance  of  owner  of  house  against  forcible  expulsion 339 

Person  entering  house  by  force  may  be  expelled  by  force 339 

Ejecting  ticket-holder  from  theater  by  force 340 

Wrongfully  ejecting  person  from  clerk's  office 340 

.    Defense  of  personal  property  as  an  excuse  in  actions  for 340 

Preserving  the  peace,  etc 341 

Interfering  to  prevent  or  stop  an  affray  is  not 341 

Punishing  misconduct  on  shipboard  is  not 341 

The  beating  of  a  servant  by  his  master  is 342 

Wife  cannot  maintain  aetion  for,  against  her  husband 342 

Right  of  schoolmaster, to  chastise  pupil 342 

Provocation  as  a  defense  to , 342 

An  assault  will  justify  a  blow 342 

Mere  words  of  provocation  will  not  justify 342 

Provocation  may  be  shown  in  mitigation  of  damages 343 

Expulsion  of  guest  by  innkeeper 343 

Removing  person  disturbing  religious  meeting 343 

Expelling  passenger  for  non-payment  of  fare 344 

Consent  of  party  assaulted  as  a  defense 345 

Damages  in  actions  for 345 

Damages  discretionary  with  jury 345 

What  damages  recoverable  where  special  damages  are  not  pleaded 345 

What  should  be  oonsidered  in  estimating  damages  in 345 

Aggravation  of  damages 345 

When  and  where  exemplary  damages  may  be  given 346 

Mitigation  of  damages 346 

What  may  be  shown  in  mitigation  of 346,  347 


INDEX.  759 

ASSENT  (See  Contracts):  page. 

Of  pai'ties  to  contracts • 82 

Of  the  capacity  to 82 

Essential  to  validity  of  contract 83 

What  constitutes  a  valid 83 

Three  requisites  of  a  valid  assent 83 

Proposal  without  assent  does  not  amount  to  a  contract 83 

Modified  acceptance  of  offer .' -  83 

Offer  may  be  withdrawn  before  it  is  assented  to 84 

Procured  by  fraud,  renders  contract  voidable 84 

How  affected  by  a  mistake  as  to  law .  , 84 

How  affected  by  mistake  as  to  fact 85 

Obtained  by  duress 85 

Griven  by  letter 86 

Given  by  telegraph 87 

To  bill  or  note ■ 537 

ASSESSMENT : 

When  equity  will  interfere  against,  as  a  cloud  on  title 665 

ASSETS,  ADMINISTRATION  OF : 

General  rules  relating  to 348 

What  are  to  be  deemed  assets 348 

What  are  legal  assets 348 

What  are  equitable  assets 349 

Origin  of  the  doctrine  of  equitable  assets 349 

Principles  of  distribution 350 

Distribution  of  legal  assets  in  courts  of  equity 350 

Distribution  of  equitable  assets 350 

Creditors  preferred  to  legatees  in 351 

Where  the  assets  are  partly  legal   and  partly  equitable ".  351 

Order  of  distribution  of,  in  equity 351 

"Marshaling  assets 352 

Principle  upon  which  the  court  proceeds  to  marshal  assets 352 

Illustrations  of  the  principle  upon  which  the  court  acts 352,  353 

ASSIG-NEE  (See  Assignment) : 

Title  of  assignee  for  benefit  of  creditors 592 

May  maintain  action  in  his  own  name 81 

ASSIGNMENTS : 

Term  "  assignment "  defined 355 

What  is  assignable 98,  90,  355 

Subject  of  assignment  at  law  must  have  an  actual  existence 355 

Of  things  not  in  existence < 351 

Of  chose  in  action  prohibited  at  common  law 356 

Of  lands  and  interests  in  lands 356 

Every  estate  and  interest  in  lands  assignable 356 

Laws  in  the  several  States  as  to  assignments  of  estates  in  land 357 

Pre-emption  right  not  assignable 357 

Of  contracts  to  convey  interest  in  lands  upon  performance  of  certain  con- 
ditions   357 


760  INDEX. 

ASSIGNMENTS  —  Continued.  page. 

Of  son's  interest  in  his  father's  estate,  the  father  living 357 

Contract,  when  assignable 357 

Examples  of  assignable  contracts 358 

Of  money  due  or  to  become  due 359 

Creditor  may  assign  debt  and  securities  for  its  payment 359 

Unliquidated  balance  of  account  is  assignable 359 

Of  fees  or  salaries  .' 359 

Of  judgment  and  execution .    359 

Of  cause  of  action 98,  359 

Of  right  of  action  for  conversion  of  property 360 

Of  claim  for  money  obtained  by  fraud 360 

Of  rights  of  action  for  torts  generally 360 

Of  mechanics'  lien 360 

Of  part  of  a  note 361 

What  is  not  assignable 361 

Mere  personal  torts  are  not  assignable 361 

Void  as  against  public  policy 361 

Contracts  for  the  performance  of  personal  services 362 

Note  payable  in  personal  services 362 

Parol  license  to  be  exercised  on  land  of  another. ., 362 

License  to  keep  a  grocery 362 

Form  and  mode  of  assigning 362 

Of  contracts  by  mere  transfer,  valid 362 

Promise  to  pay  debt  out  of  a  fund  not  an  assignment  of  the  fund 363 

Of  fund  by  order  dravrn  upon  it 363 

Of  mortgage  need  not  be  under  seal 363 

Judgment  may  be  assigned  by  parol 363 

Of  notes,  bills,  executions  and  covenants 363 

Of  contracts  to  convey  land,  or  book  debts 363 

No  particular  form  necessary  to  constitute 363 

Validity  of  assignment  as  to  assignor's  creditors 364 

Rights  of  assignee 364 

What  passes  to  assignee  of  chose  in  action 364 

Assignee  acquires  the  rights  of  the  assignor 364 

Assignee  of  a  demand  may  release  it 364 

Assignipent  of  a  debt  carries  with  it  collateral  securities  held  by  creditor. .   365 

Of  bill  of  lading 524,  529 

On  assignment  of  mortgage,  guaranty  of  collection  passes  with  it 365 

Assignment  of  judgment  and  execution  does  not  convey  moneys  collected 
under  it t 365 

Liability  of  assignee 366 

Assignee  of  demands  not  negotiable  takes  them  subject  to  all  equities,  bur- 
dens and  offsets 366 

Rights  of  assignor 366 

Liability  of  assignor 367 

Assignor  not  liable  to  assignee  on  account  of  offset  to  assigned  demand. . .   367 

Vendee  of  chose  in  action  warrants  title • 367 

Implied  contract  of  assignor  as  to  validity  of  obligation  assigned 367 

Rights  of  assignee  to  recover  back  moneys  paid  on  assignment 367 


INDEX.  761 

ASSIGNMENTS  —  Continued.  ^  PAGE. 

False  representations  of  assignor  of  mortgage 367 

Vendor  of  bill  or  note  warrants  its  genuineness 367 

Action  at  law  by  assig-nee 368 

Right  of  assignee  to  sue  in  bis  own  name 81,   368 

Same  equities  may  be  set  up  against  assignee  as  against  assignor 368 

Right  of  assignee  to  sue  in  name  of  assignor 369 

Action  in  equity  by  assignee 369 

When  assignee  may  sue  in  equity 369,  370 

Made  in  good  faith,  upheld  in  equity 369 

Assent  of  debtor  not  necessary  to  give  validity  to 369 

Notice  to  debtor  of  assignment 370 

Not  defeated  by  death  of  assignor 370 

Of  policy  of  insurance 371 

Fraudulent  assignments 371 

Voluntary  assignments 372 

ASSUMPSIT  : 

Action  of,  and  when  it  may  or  may  not  be  maintained 373 

Nature  and  definition  of 373 

Express  assumpsit  defined 373 

Implied  assumpsit  defined 373 

Distinguished  from  covenant  and  debt 374 

A  promise,  express  or  implied,  necessary  to  maintain 374 

Consideration  for  promise  necessary  to  sustain 374 

Agreements  without  consideration  void , 374 

Special  or  general 375 

Special  assumpsit  founded  on  express  promise 376 

Plaintifif  must  show  full  performance 376 

Defense  of  fraud  in  action  of 376 

General 376 

General  assumpsit  rests  upon  an  implied  promise  or  contract 376 

What  may  be  shown  in  defense  to  action  of 376 

When  the  action  lies 377 

On  breach  of  contract  under  seal 377 

For  money  accruing  due  under  a  statute 377 

For  goods  and  chattels 378 

To  recover  money  belonging  to  one  legatee  and  received  by  another 378 

To  recover  the  fees  of  a  justice  of  the  peace 378 

For  a  breach  of  warranty  in  the  sale  or  exchange  of  chattels 378 

For  breach  of  contract  of  bailment 378 

For  labor  of  servants 378 

To  recover  the  whole  of  an  account 378 

To  recover  the  amount  of  a  bill  of  exchange 378 

To  recover  the  purchase-price  of  lands » 378 

On  promise  of  devisee  to  pay  specific  sum  charged  on  lands 378 

On  a  promise  to  pay  a  debt  barred  by  the  statute 378 

'        For  unpaid  installments  of  subscriptions  for  stock 378 

To  recover  the  value  of  goods  converted  by  bailee 378 

Against  husband  or  father  for  necessaries 378 

Vol.  L— 96 


762  INDEX. 

ASSUMPSIT  —  Continued.  page. 

Against  executor  for  taxes  due  from  testator 379 

Against  common  carrier 379 

Against  collector  for  taxes  collected  by  him 379 

Against  attorney  for  negligence 379 

Against  bailiff  of  goods  on  promise  to  account 379 

Against  company  for  goods  furnished 379 

Against  corporation  refusing  to  permit  a  transfer  of  its  stock 379 

Against  administrator  for  distributive  shares 379 

On  bonds  of  city  in  aid  of  railroad 379 

To  recover  back  money  paid  assignor  of  pretended  demand 379 

By  partner  on  dissolution  of  copartnership 379 

By  purchaser  against  vendor  of  stolen  property 379 

By  tenant  in  common  against  co-tenant 379 

For  tolls 380 

Against  innkeeper 380 

On  express  agreement  to  pay  rent 380 

For  purchase-price  of  lands 380 

By  creditor  of  copartnership  against  partner  assuming  liabilities  of    the 

firm 381 

For  subscription  for  stock  of  corporation 381 

By  heirs  at  lavy  against  administrator 381 

General  indebitatus  assumpsit,  when  proper 382 

Promise  must  be  alleged  to  support . .    382 

To  recover  for  work  done  under  executory  contract 382 

On  an  implied  agreement 383 

Cases  in  which  indebitatus  assumpsit  has  been  maintained 383,  384 

When  special  assumpsit  lies 385 

When  the  action  does  not  lie 386 

When  there  is  an  express  promise,  there  can  be  no  implied  promise. . . . . .  386 

Will  not  lie  upon  a  contract  under  seal 386 

Will  not  lie  to  recover  a  fixed  salary 386 

Cases  in  which  assumpsit  will  not  lie 387 

When  indebitatus  assumpsit  does  not  lie 388,  389 

Who  may  bring  the  action 390 

Plaintiff  must  be  party  from  whom,  or  for  whose  benefit  consideration 

moves,  or  is  paid 390 

'By  corporation 392 

On  quantum  meruit 392 

Pleadings  in  the  action 392 

Declaration  in 392 

Averments  in  declaration 393 

Facts  showing  consideration  nyist  be  alleged 393 

How  the  consideration  should  be  pleaded 393  • 

Promise  of  defendant  must  be  pleaded 394 

Allegations  of  performance  of  conditions  precedent 394 

Averments  of  demand  or  notice 395^ 

Averments  of  breach  of  defendant's  promise 395 

What  may  be  pleaded  in  defense '. . . .  396 


INDEX.  763 

ASSUMPSIT  —  Continued.  p^^j.^ 

What  may  be  shown  under  the  general  issue 397    400 

Special  pleas  in 3g'T 

Evidence  in  the  action 393 

Proofs  necessary  under  the  common  counts 398 

What  writings  may  be  put  in  evidence  under  the  common  counts 398 

What  must  be  proven  under  special  counts 399 

What  evidence  may  be  given  under  the  general  issue 400 

What  evidence  may  be  given  under  the  plea  of  payment 401 

Evidence  held  incompetent  in 4qj 

Variance 4Q2    403 

Damages  in '  ^^^ 

Actual  damages  generally  recovered 404 

W  hen  agreed  price  will  be  the  me^isure  of  damages 404 

Election  between  assumpsit  and  other  actions 405 

Plaintiff  may  waive  tort  and  bring 405 

Principle  upon  which  the  right  of  waiver  rests   405 

Waiver  of  conversion  of  goods 40g 

Waiver  of  fraud  in  purchase  of  property 4O6 

Entire  tort  must  be  waived  if  any  part  be  waived   407 

Illustrations  of  the  doctrine  of  waiver 407 

Where  tort  cannot  be  waived  and  assumpsit  maintained 407    408    409 

Election  in  other  cases 4qq 

ATTACHMENT: 

Of  the  remedy  by,  in  general 410 

Nature  of  the  remedy 420   411 

Origin  of '  4JQ 

Names  given  to  the  process  in  the  several  States 410 

Remedy  in  the  United  States 4]  ]^ 

Statute  authorizing,  must  be  strictly  construed 411 

Distinction  between  foreign  and  domestic 4II 

In  the  New  England  States 4jj 

In  States  other  than  New  England 412 

In  what  actions  allowed 412 

Generally  issues  on  contract  indebtedness 412 

Degree  of  certainty  required  in  the  claim  of  the  attaching  creditor 412 

May  issue  on  a  debt  not  yet  due  in  certain  States 4I3 

In  what  actions  not  allowed 413 

Remedy  not  given  in  actions  for  tort 413 

Where  penalty  has  been  fixed  for  breach  of  contract 413    414 

Remedy  in  certain  States 414 

Does  not  lie  in  an  equitable  action 414 

In  whose  favor  issued 415 

In  favor  of  creditors,  non-residents  and  assignees 415 

Against  whom  issued 415 

Lies  against  corporations 4I5 

Lies  against  absent  debtors 415 

Does  not  lie  against  persons  temporarily  absent 415 

What  is  and  what  is  not  such  absence  as  gives  right  to  remedy 416 


764  INDEX. 

ATTACHMENT  —  Continued.  page. 

Lies  against  absconding  debtors 416 

"Abscond  "  defined 416 

Who  are  absconding  debtors 416 

Act  of  absconding  a  personal  act 417 

What  "  concealment "  will  authorize 417 

Removal  or  fraudulent  disposition  of  property  by  debtors 417 

What  removal  of  property  will  authorize 417 

Affidavits  founded  on  behef 417 

Threat  of  debtor  that  he  will  assign  his  property 418 

Lies  against  non-resident  debtors 418 

Who  are  non-residents  within  the  statute 419,  420 

Transient  presence  of  non-resident  does  not  defeat  remedy 419 

Where  one  of  two  partners  is  a  non-resident 419 

Word  "  citizen  "  in  the  Maryland  statute  construed 420 

Residence  not  lost  by  soldier  on  duty 420 

Escaped  convicts  are  non-residents 420 

Residence  of  wife  follows  that  of  husband 420 

Lies  against  corporations 421 

Persons  in  representative  character , 421 

When  administrators  may  or  may  not  be  proceeded  against  by 421 

What  property  may  be  taken 422 

Whatever  may  be  sold  under  execution  may  be  attached 422 

Real  estate  subject  to 422 

Against  interest  of  mortgagee 422 

Interest  of  land  under  contract  of  purchase 423 

Personal  property  liable  to  execution,  liable  to 423 

What  property  exempt  from 423 

Property  exempt  from  execution 423 

Chattels  pawned  or  mortgaged 424 

Property  held  under  a  lien 424 

Goods  subject  to  right  of  stoppage  in  transitu. . 424 

Goods  held  under  conditional  sale 424 

Goods  loaned • 424 

Goods  acquired  by  fraud 424 

Property  in  the  custody  of  the  law 425 

Private  papers  and  books  of  account 425 

Perishable  property ^. 425 

Hides  in  vats  or  charcoal  in  the  pit 425 

Mail  coaches ; 425 

Remedies  for  illegal 426 

Remedy  for  illegal  attachment  by  action  on  the  attachment  bond 426 

No  action  lies  for  irregular  suing  out 426 

No  action  lies  for  failure  to  prosecute 426 

What  constitutes  a  breach  of  the  condition  of  the  bond 426 

When  action  maintainable,  though  the  plaintiff  succeeded 427 

Only  defendant  in  attachment  can  maintain  action  on  the  bond 427 

Where  the  bond  is  given  to  several  a  joint  action  may  be  brought 427 

Must  be  discharged  before  an  action  lies  on  the  bond 427 


INDEX.  765 

ATTACHMENT— Cbn<m«ed  p^^^^ 

What  damages  may  be  recovered  for  the  wrongful  issuing  of 427 

Action  lies  for  malicious  attachment 428 

What  constitutes  a  malicious  attachment 428 

Suit  must  b6  terminated  before  action  for  malicious  attachment  lies 429 

Damages  in  action  for  malicious 429 

ATTESTATION : 

Of  contracts •,  ■,  o 

Of   bonds *    gyg 

ATTORNEY,  POWER  OF.    (See  Power  of  Attorney.) 
ATTORNEYS: 

Powers,  rights,  duties  and  liabilities  of. 430 

Nature  of  the  office  and  qualifications  for .....!'.....  430 

Definition  of  word  "  attorney  " 43q 

Officers  of  the  court  where  they  practice 43Q 

How  far  public  officers ) *  43Q 

Distinction  between  attorneys  and  counsel  abolished 43 1 

Office  of,  not  known  in  justice  court 43I 

Who  may  be  admitted  as 431 

Right  to  practice  in  State  courts  regulated  by  State  laws 431 

Qualifications  of 400 

Qualifications  of,  in  Federal  courts  prescribed  by  Congress 431 

How  admitted  to  practice 432 

Court  may  look  behind  certificate  of  moral  character 439 

o^t^of 1!!!]!!!!!!!;;;!  432 

Admission  of,  a  judicial  act 433 

Admission  of,  cannot  be  compelled  by  mandamus 433 

Power  of  the  court  to  suspend 433 

License  cannot  be  summarily  suspended 434 

Striking  off  the  roll *     43 . 

Authority  or  powers  of 43^ 

General  authority  of ao. 

Acts  of,  binding  on  cHents '  434 

Authority  of.  will  not  be  questioned  in  the  absence  of  suspicious  circum- 
stances    .r,. 

434 

Unauthorized  acts  of,  become  binding  by  ratification  of  client 435 

May  receive  client's  money 40- 

Cannot  receive  any  thing  but  lawful  money  in  payment  of  client's  claim. .   435 

May  receive  partial  payment  of  client's  claim 435 

.  Power  to  receive  moneys  on  execution 435    435 

Have  no  power  to  sell  their  client's  demand ^ '  435 

Have  no  general  authority  to  compromise  claims 43g 

When  compromise  by,  will  be  binding 43g 

May  submit  the  cause  to  arbitration \ _        "  437 

Agreements  by,  relating  to  the  conduct  of  the  suit '  437 

Power  of,  to  control  proceedings  in  court 437 

Stipulations  by  client  are  of  no  effect 437 

May  release  property  attached » 43g 

May  indemnify  officer  making  a  levy 433 


766  INDEX. 

ATTORNEYS  —  Continued.  page. 

What  an  attorney  may  do  under  his  general  authority. 438 

What  an  attorney  may  not  do  under  his  general  authority ,  439 

May  sue  out  writ  of  error 439 

May  discontinue  suit 439 

Authority  of,  to  make  admissions,  stipulations,  etc 440 

Cannot  waive  a  jury  trial  in  a  criminal  case 440 

Cannot  stipulate  not  to  appeal  or  seek  a  new  trial 440 

When  agreement  of  counsel  will  not  be  enforced 440 

Stipulations  in  open  court  are  binding 440 

Power  to  control  judgment,  execution,  etc 441 

Power  of,  to  confess  judgment 441 

Power  of,  to  take  out  an  execution 441 

Power  of,  to  stay  an  execution 441 

May  discharge  defendant  from  arrest 441 

Power  of,  to  acknowledge  satisfaction  of  judgment 441 

Cannot  release  real  estate  from  the  lien  of  judgment 442 

Have  no  implied  authority  to  release  property  levied  on 442 

Payment  to  an  attorney  is  payment  to  his  client ' 442 

Authority  to  prosecute  auxiliary  proceedings 443 

Termination  of  authority  of 443 

Client  may  terminate  attorney's  authority  at  his  pleasure 443 

May  sever  their  connection  with  a  case  on  reasonable  notice 443 

Authority  terminated  by  death  of  client 444 

General  authority  of,  ceases  with  the  recovery  of  judgment 444 

Duties,  liabilities  and  disabilities  of. 444 

Relation  between  attorney  and  client 444 

Liability  of  attorney  for  want  of  skill 445 

Not  liable  for  every  mistake  in  practice 445 

Disqualified  to  act  as  bail 445 

May  give  evidence  for  his  client 446 

Cannot  act  in  any  other  capacity. 447 

Cannot  act  on  opposite  sides 448 

Cannot  change  sides  in  the  same  cause  at  different  trials 448 

May  draw  contracts  between  parties  having  adverse  interests 448 

Liable  to  persons  injured  by  unauthorized  appearance 448 

May  render  themselves  liable  for  malicious  arrest 448 

Liability  of,  for  damages  resulting  from  an  execution  illegally  issued 448 

Liability  of,  on  their  promises  and  representations 449 

Liability  for  costs,  fees,  etc 449 

Liability  of,  for  costs  in  the  various  States 449 

Power  of  court  to  order  costs  to  be  paid  by 450 

Liability  of,  for  fees  of  officers 450 

Rights  and  privileges  of 450 

Right  of,  to  compensation 451 

May  recover  their  fees  by  action 451 

Compensation  of,  fixed  by  agreement 451 

Value  of  services  of,  how  proved 451 

Special  agreements  for  pay  scrutinized,  when  oppressive  to  client 452 


INDEX,  767 

ATTORNEYS—  Continued.  page. 

An  agreement  to  accept  a  portion  of  the  recovery  is  valid 452 

Void  agreements  as  to  fees 453 

Duty  to  defend  persons  charged  with  crime 453 

Cannot  recover  for  services  negligently  rendered 453 

Lien  for  costs 453 

To  what  an  attorney's  lien  extends 454 

Privileges  of 455 

Exemption  from  arrest 455 

When  the  privilege  of,  ceases 456 

Right  to  enter  prison. to  advise  with  client 456 

Actions  by,  ag-aiiist  clients 456 

Must  prove  retainer  to  maintain  action  against  clients 456 

Retainer  of 456 

Appearance  by  an  attorney  raises  the  presumption  of  a  retainer 456 

Proof  of  retainer 457 

Parol  retainer  sufficient  authority  to  commence  an  action 457 

Authority  to  appear  may  be  inferred 457 

Unauthorized  appearance 458 

Party  may  be  bound  by  unauthorized  appearance 458 

Remedy  against  unauthorized  appearance 458 

Actions  and  proceedings  by  clients  against 459 

Actions  against,  for  negligence 459 

What  constitutes  actionable  negligence 459 

Actions  against  attorneys  for  accounting  and  payment 461 

Not  liable  for  moneys  collected  before  demand 461 

When  demand  unnecessary - 461 

When  action  for  money  had  and  received  will  lie  against 461 

Summary  proceedings  against 462 

Client  may  have  relief  against  negligent  acta  of 462 

Change  of 462 

Party  may  discharge  his  attorney  at  any  time 462 

Party  cannot  substitute,  without  payment  of  fees 463 

Proceedings  on  death  of. 463 

Cannot  withdraw  without  leave  of  court 463 

Cannot  employ  substitutes 463 

Has  no  implied  power  to  employ  counsel 464 

Liable  for  collections  made  by  assistant ; 464 

Cannot  substitute  another  attorney  on  being  elected  judge 464 

Law  partnerships  recognized 464 

Liability  of  the  members  of  a  law  firm 464 

How  far  bound  by  the  acts  of  their  clerks 465 

Dealings  between  attorney  and  client 465 

Jealousy  of  the  law  as  to  dealings  between  attorney  and  client 465 

Presumptions  against  transactions  too  favorable  to 466 

Relief  granted  client  against  hard  bargains  with 466 

Protection  to 467 

Not  allowed  to  make  purchases  adverse  to  client 467 

Cases  in  which  attorneys  will  be  deemed  trustees  for  their  clients 467 


7H8  INDEX. 

ATTORNEYS  —  Continued.  page. 

Privileged  communications 468 

What  communications  are  privileged,  and  between  what  persons,  468,  469,  472 

How  only  the  privilege  may  be  waived 469,  471 

Exceptions  and  limits  to  the  rule 469 

What  communications  are  not  privileged 469,  472 

Communications  in  the  presence  of  both  parties  are  not  privileged 470 

Are  not  compelled  to  produce  papers  intrusted  to  them 471 

Termination  of  privilege 471 

Disbarring 473 

Powar  of  the  court  to  disbar 473 

What  is  a  ground  for  disbarring 473,  474 

May  be  disbarred  for  contempt  or  unfitness 473 

Threats  of  personal  violence  to  judge  out  of  court 474 

Subornation  of  perjury  a  ground  for  disbarring 474 

What  is  not  sufficient  cause  for  disbarring 474 

Are  entitled  to  notice  of  proceedings  to  disbar 474 

Decision  of  proceedings  for  disbarring 475 

Effe.^t  of  disbarring 475 

Restoration  of,  may  be  compelled  by  mandamus 475 

AUCTIONEERS : 

Wlio  may  be  an  auctioneer 476 

Auction  defined 476 

And  brokers  distinguished 476 

Are  the  agents  of  the  sellers  of  the  goods 476 

Statutes  relating  to 476 

Bonds  required  of 476 

Verbal  authority  sufficient  to  authorize  agent  to  act  as 477,  478 

Eights  and  powers  of 477 

Have  a  right  to  prescribe  rules  and  terms  of  sale 477 

What  is  a  notice  to  purchasers  of  terms  of  sale 477 

May  receive  payment  for  goods  sold 477 

Must  sell  for  cash 477 

Has  no  implied  right  to  warrant  goods  sold 478 

Cannot  delegate  their  powers 478 

May  employ  all  necessary  clerks  and  assistants 478 

Cease  to  be  agents  when  the  sale  is  perfected .  478 

May  bring  actions  for  the  purchase-price  of  goods 478 

Cannot  seU  at  private  sale 479 

Cannot  bid  or  buy  for  another 479 

Duties  and  liabilities  of ,.  479 

Required  to  use  ordinary  diligence  and  skill  in  the  care  of  goods 479 

Are  liable  to  indictment  for  placing  goods  in  a  public  street 479 

Must  obey  the  instructions  of  his  principal  at  his  peril 480 ■ 

In  the  absence  of  instructions  must  follow  custom 480 

Personally  liable  on  sales  for  undiscovered  principal 480 

Purchaser  may  repudiate  sale  for  undiscovered  principal 480 

Are  responsible  for  gross  negligence  or  ignorance 480 

Degree  of  care  and  skill  required  of 480 


INDEX.  769 

AUCTIONEERS  —  Continued.  page. 

Are  liable  to  the  owner  for  sale  of  stolen  goods 480 

When  third  person  may  maintain  trover  against 480 

Liable  on  an  express  warranty  of  title 481 

When  liable  as  stakeholders 481 

Effect  of  puffing  and  combinations 482 

Increasing  price  by  fictitious  bids  avoids  the  sale 482 

Combinations  to  prevent  bidding  are  fi-audulent 482 

Agreements  not  to  bid  are  void 482 

Void  agreements  respecting  public  sales 483 

Liabihty  of  bidder  for  undisclosed  principal 483 

When  illusory  bids  will  not  avoid  a  sale 483 

Effect  of  employment  of  puffer  in  sales  "  without  reserve" 484 

Sale,  when  binding 485 

When  bid  may  be  withdrawn 485 

Effect  of  statute  of  frauds 485 

Are  agents  of  vendor  and  purchaser 485 

Sales  at  auction  are  within  the  statute  of  frauds 485 

What  will  be  a  sufficient  comphance  with  the  statute 486 

Form  of  memorandum  of  sale  by 486 

Compensation  of 487 

Loss  by  negligence  or  fraud  defeats  right  to  compensation 487 

Lien  of 487 

Actions  founded  upon  auction  sales 488 

May  maintain  actioij  against  a  purchaser 488 

Vendor  Uable  for  statements  of 488 

AUDITA   QUERELA: 

Nature  of  the  remedy 489 

Origin  of ., 489 

When  it  lies 489,  490 

Will  lie  though  auother  remedy  exist 490 

As  a  relief  against  executions  or  judgments .• 490 

When  it  does  not  lie 491 

Does  not  lie  upon  erroneous  acts  of  courts 491 

Does  not  lie  for  matter  which  may  be  corrected  by  writ  of  error 491 

Does  not  lie  where  a  party  has  had  an  opportunity  of  defense 491 

Does  not  lie  to  correct  taxation  of  costs 491 

Against  what  judgments  and  execution  not  a  proper  remedy ...   491 

Procedure  by 492 

Writ  must  be  allowed  on  motion  in  open  court 492 

Effect  of  allowance  of  writ 492 

Parties  and  pleas  in 492 

Relief  upon  motion  in  place  of 492 

AVERAGE : 

Doctrine  of  general  average 183 

Right  of  contribution  in  case  of  loss  at  sea 183,  184 

BAILMENTS : 

Nature  and  definition 494 

Parties  to .....  494 

Vol.!.  — 97. 


770  INDEX. 

BAILMENTS  —  Continued.  paob. 

Tarious  kinds  of 495 

Deposit 495 

Mandate 495 

Loan  for  use  or  commodatum 495 

Pledge  or  pawn , . ; 495 

Hiring 495 

General  rules  relating  to 495 

Consideration  necessary  to  sustain , 496 

What  care  and  diligence  is  required 496 

Effect  of  custom  or  usage  . .    •. ,  .•  496 

Kinds  and  degrees  of  negligence 497 

Different  degrees  of  negligence  explained 497 

Fraud  by  bailee 497 

BANKS  AND  BANKING: 

Geueral  principles  relating  to 498 

Nature  of  the  dealings  of  bankers 498 

Principal  attributes  of  banks 498 

Banks  of  deposit,  discount  and  circulation 498 

Bank  may  select  its  dealers 498 

Effect  of  usage  upon  contracts  and  dealings  with 499 

Knowledge  of  a  usage  must  be  brought  home  to  party  affected  by  it 499 

Custom  of  banks  as  to  correcting  mistakes 499 

Custom  of,  to  pay  only  half  of  a  half  note  499 

Custom  of  making  demand  without  presentation 499 

By-laws  of  a  bank  do  not  affect  third  persons 500 

Liens  of 500 

Lien  of  banker  for  advances  on  securities 500 

Deposits,  general  and  special 501 

Liability  of  banks  for  the  loss  of  special  deposits 502 

Liability  of,  for  refusal  to  pay  check 148 

Relation  between  bank  and  depositor 502 

Bank  liable  for  loss  of  general  deposit 503 

Bank  must  exhibit  its  books  to  depositors 503 

Repayment  of  deposits   503 

Trust-money  deposited  in  the  name  of  the  trustee  retains  its  character. . . .  503 

Who  may  withdraw  deposits . 504 

Payment  to  person  presenting  pass-book  of  a  savings  bank 504 

Demand  of  deposit,  when  necessary  before  action 254,  504 

Checks,  nature  and  requisites  of 505 

(See  Checks.) 

Certified  checks 607 

Paying  forged  checks 508 

Over-drafts  not  favored  in  law 509 

Bank  may  maintain  an  action  to  recover  the  amount  of  over-draft 509 

Property  in  bills  obtained  by  fraudulently  overdrawing  an  account 509 

Effect  of  drawing  a  check  without  funds  to  meet  it 510 

By-laws  of  savings  banks  in  regard  to  pass-books 510 

Certificates  of  deposit,  nature  of    511 

Nature  of  bank  notes  or  bills 511 


INDEX.  771 

BANKS  AND  BANKING  —  Cowimifcd.  pack. 

Destroyed,  mutilated  or  lost  notes  must  be  paid 512 

Holder  of  lost  or  stolen  bills  may  recover  on  them 512 

Demanding  payment  of  bank  bill  before* action 513 

Interest  on  bank  bills 513 

Mode  of  payment  of  bank  notes 514 

Unreasonable  delay  in  paying  a  bank  note  is  equivalent  to  a  refusal  to 

pay 514 

Refusal  to  redeem,  consequences  •£ 514 

Effect  of  suspending  payment 514 

Loans  and  discounts , 514 

Bank  must  loan  its  own"capital- 514 

Effect  of  charging  higher  rate  of  interest  than  allowed  by  charter 515 

Bank  buying  usurious  note  stands  on  same  footing  as  an  individual 515 

Agreements  that  an  indorser  shall  not  be  liable  on  his  indorsement 515 

Collections  by  banks  and  bankers 244,  265,  266,  516 

Contract  between  bank  and  depositor  of  note  for  collection 516 

Liability  of  collecting  bank 516,   517 

Bank  liable  for  negligence  of  its  notary 244,  516 

Bank  not  liable  for  neglect  or  default  of  second  bank 517 

Liability  of  second  bank 517 

Powers  and  duties  of  cashier 518 

How  far  a  bank  is  liable  for  the  acts  of  its  cashier 251,  518,   519 

Liability  of  cashier  to  the  bank 251,  520 

Demanding  payment  of 254 

BANK  BILLS : 

Defined 535 

Nature  of 511 

Destroyed,  mutilated  or  lost 512 

Demand  of  payment  on,  before  action 513 

BANKRUPTCY : 

Of  principal  debtor  does  not  discharge  sureties  in  a  peoal  bond 687 

BAR: 

Pleas  in 158 

Admission  of  attorneys  to  practice  at 431 

BATTERY  (See  Assault  and  Battery) : 

What  constitutes 335 

BEES: 

When  property 298 

Title  to,  how  acquired : 390 

BENEVOLENT  SOCIETY: 

Note  given  for  dues  to,  not  collectible  at  law 108 

BILLS  OF  LADING: 

General  principles  relating  to 521 

Nature  and  definition  of 521 

Who  may  make 522 

To  whom  given 522 

Form  and  requisites  of ^.. 522 


772  INDEX. 

BILLS  0¥  LADING— Continued.  paob. 

Should  not  be  signed  before  goods  are  on  board 523 

Receipts  for  goods  received 523 

Duration  and  currency , 523 

Remain  in  force  until  goods  are  delivered 523 

Right  of  master  to  freight  after  signing , 524 

Are  negotiable 524 

Right  of  assignee  to  maintain  action  on 524 

Indorsement  necessary  to  pass  title  to  goods 525 

Exemption  of  risks 525 

Liability  of  carrier  under 525 

Effect  of  acceptance  of,  without  objection '. .  526 

Rights  of  shippers  of  property .• 526 

When  delivery  of,  as  effectual  as  a  delivery  of  the  goods 526 

Rights  of  indorsee  or  holder 526 

Effect  of  a  delivery  of,  indorsed 526,  527 

Who  is  a  bona  fide  holder  of , 527 

Transfers  of,  must  be  for  value  and  not  as  security  for  antecedent  debt. . .  527 

Value  must  be  given  in  good  faith 527 

Effect  of  notice  of  vendee's  insolvency 527 

Effect  of  fraud  in  procuring 528 

Right  of  vendor  or  consignor  to  stop  goods  in  transitu 528 

Effect  of  assignment  of 528,  529 

Who  is  not  a  holder  for  value 529 

Effect  of  pledge  of 529 

Lien  of  shipping  agent 530 

Presentation  and  production  of 530 

Hovp-  affected  or  varied  by  parol  evidence 530,  531,  532 

Hovr  far  open  for  explanation 580,  531 

Right  of  indorsee  to  maintain  action  on 532 

Who  should  sue  on 532 

Remedy  by  interpleader ^  ...  533 

BILLS  AND  NOTES : 

General  principles  and  definitions ■ 534 

Bill  of  exchange  defined 534 

Promissory  note  defined 534 

Check  defined 534 

Bank  bills  or  notes 535 

Foreign  and  inland  bills  distinguished 535 

Negotiable  instruments  defined 535 

Parties  to 535,  536,  537 

Relation  between  parties  to 535,  536,  537 

Payee 536 

Indorser  and  indorsee 536 

Holder 536 

Drawer  and  drawee 536 

Acceptor 536 

What  is  an  acceptance 536 

What  is  an  indorsement 536 


INDEX.  773 

BILLS  AND  NOTES  —  Continued.  *  page. 

Assent  of  parties  necessary  to  validity  of. 537 

Legal  capacity  to  assent 537 

Of  infants  are  voidable 537 

Of  married  women  void  at  common  law 537 

Agent  may  make 538 

Forms  and  requisites  of 538 

Must  contain  an  absolute    promise  or  order  .to  pay  a  specified  sum  of 

money 538 

Notes  must  have  competent  makers 538 

Bills  must  be  accepted  by  persons  capable  of  accepting 538 

Must  be  a  proper  person  to  whom  the  note  is  payable 538 

Illustrations  of  notes  or  bills  void  for  want  of  proper  payee 539 

Validity  of  notes  payable  to  the  maker's  order 540,  541 

Validity  of  notes  payable  to  fictitious  persons 540,  541 

Note  not  payable  to  bearer  must  name  payee 541 

Notes  payable  to  bearer 541 

Validity  of  notes  with  name  of  payee  left  in  blank 542 

Words  of  negotiability  in .,.  542 

Mistake  in  the  name  of  a  payee  will  not  invalidate 542 

Notes  in  the  form  of  due  bills  are  valid 543 

How  far  a  seal  destroys  the  negotiability  of 543 

Bonds  not  under  seal  are  promissory  notes 543 

Bills  of  exchange  and  orders  when  treated  as  notes 543 

Warrants  of  municipal  corporations  when  treated  as  notes 543 

Instruments  payable  in  money  or  chattels  at  election  of  holder 544 

Railroad  bonds  payable  to  A.  B.  or  holder 544 

Signature  to 544 

Promise  of  the  maker  must  be  unconditional 545 

Efi'ect  of  adding  the  word  "  surety  "  to  a  signature 545- 

Partnership  notes 545 

To  be  negotiable  must  be  payable  in  money 1 546 

Clauses  rendering  bills  and  notes  unnegotiable 546 

Notes  payable  in  installments '. 547 

Assignment  of  non-negotiable 547,  548 

Essential  qualities  of 548 

Must  be  payable  absolutely  and  at  all  events 548 

Conditional  clause  rendering  note  non-negotiable 549 

Notes  payable  on  happening  of  event  certain  to  occur 550 

Form  of  order  to  pay  in,  immaterial 550 

Certainty  as  to  payee  in 550 

Certainty  as  to  amount  to  be  paid 551 

Must  not  be  payable  out  of  a  particular  fund 551 

May  be  chargeable  to  a  particular  account 553 

Mode  of  writing  immaterial 554 

May  be  written  or  printed,  or  both 554 

May  be  written  in  pencil 554 

May  be  signed  with  full  name  or  initials 554 

Figures  may  be  used  in  place  of  signature 554 

May  be  signed  by  making  a  mark 555 


774  INDEX. 

BILLS  AND  NOTES— Conimffcd  •  PAOI. 

What  is  a  sufficient  signature 554,  555 

Place  where  made  need  not  be  stated  in 555 

Date  is  not  essential  to 555 

Take  effect  from  time  of  delivery  where  no  date  is  specified 555 

Ante-dated  or  post-dated  bills  and  notes 556 

Effect  of  paying  post-dated  check  before  day  of  payment 556 

Post-dated  notes  may  be  transferred 556 

Presumption  of  delivery  on  day  of  date 556 

Place  of  payment  should  be  inserted  in 556 

Place  of  date  does  not  fix  place  of  payment 556 

Place  of  date  presumptively  the  place  of  payment 557 

Amount  stated  in  the  body  of  a  note  controls 557 

FiUing  blanks  in 557,  558 

Time  of  payment  in 558 

No  demand  before  suit  necessary  on  notes  payable  on  demand 559 

Demand  before  action  on  chattel  notes 559 

Time,  how  computed  in 559 

Laches  in  demanding  payment  on  demand  notes 559 

Foreign  bills,  how  drawn 560 

Payment  of  one  part  of  a  bill,  payment  of  all 560 

Negotiability  of 561 

Rights  of  bona  fide  holder  of  negotiable  paper 561 

How  made  negotiable 561,  562 

Sealed  notes  not  negotiable 561 

Chattel  notes  not  negotiable 561 

Assignment  and  validity  of  non-negotiable 562 

Consideration  implied  in  negotiable   .' .  563 

Efiect  of  insertion  or  omission  of  the  words  "  for  value  received  " 563 

Directions  as  to  fund  or  account  against  which  bill  is  to  be  charged 564 

Bill  must  be  properly  addressed 564 

Person  to  whom  bill  is  addressed  only  liable  as  acceptor 564 

Ambiguous,  how  construed 565 

■    When  transferable  by  indorsement  and  when  by  delivery 565 

Have  no  legal  inception  before  delivery 565 

Delivery  in  escrow 565 

Conditional  delivery  of 566 

Fraud  in  inducing  the  execution  of 566 

Liability  of  surety  on  failure  of  agreement  to  obtain  co-surety 567 

Time  when  or  where  a  note  is  signed  is  immaterial 567 

Possession  of,  'prima  facie  evidence  of  ownership 567 

Presumptions  arising  from  possession 567 

Payment  by 568,  570 

Delivery  of,  to  creditor,  not  regarded  as  payment 568 

Creditor  may  sue  on  demand  for  which  note,  bill  or  check  was  given 568 

Acceptance  of  bill  or  note  of  third  person 568,  569 

Presumption  that  note  was  not  taken  in  payment  of  precedent  debt 568 

Given  cotemperaneously  with  the  contracting  of  a  debt,  presumptively  pay- 
ment    568 

Presumption  arising  from  guaranty  of  debtor 569 


INDEX.  775 

BILLS  AND  NOTES  —  Continued.  page. 

Acceptance  of  individual  note  for  partnership  debt 570 

Discounting  new  note  and  applying  proceeds  to  former  note 570 

Acceptance  of  note  suspends  right  of  action  on  original  demand 570,  571 

Cancellation  of,  at  trial 570 

Set-oflf  in  actions  on  non-negotiable  notes 571 

Payment  by  note  of  third  person 571 

Release  of  debtor  by  receiving  new  note  of  third  person 572 

Collection  of  notes  received  as  collateral  security 572 

Payment  in  forged  negotiable  paper  is  no  payment 572 

Forged  paper  must  be  returned 573 

Payment  in  bills  of  insolvent*  bank,  no  payment 573 

Non-negotiable 573 

No  promissory  note  negotiable  unless  made  so  by  statute 573 

Right  of  assignee  of  non-negotiable  note  to  sue 573 

Sealed  notes  not  negotiable 574 

Chattel  note  not  negotiable 574 

Order  for  goods  not  negotiable 574 

Notes  payable  in  goods  or  money  negotiable 575 

Chattel  notes  are  assignable 575 

Acceptance  of  order  for  goods 575,  576,  577 

Distinction  between  bills  and  orders 575 

Place  of  payment  of  chattel  notes 678,  579,  580,  581 

Demand  of  payment  of  chattel  note 579,  580,  581 

Possession  of  chattel  note  not  evidence  of  title 581 

Non-negotiable  notes  subject  to  all  equities 581 

Guaranty  of 582 

Guaranty  is  a  special  contract 582 

A  guarantor  is  not  a  party  to  a  note 582 

When  contract  of  guaranty  is  or  is  not  negotiable 582,  583 

Contract  of  guaranty  assignable 582 

When  assignee  may  sue  on  contract  of  guaranty 583 

No  notice  of  dishonor  or  non-payment  to  guarantor 583 

Guarantor  and  principal  debtor  may  be  sued  jointly 583 

Terms  of  guaranty  must  be  complied  with  before  guarantor  is  liable 584 

Diligent  prosecution  of  principal  debtor  necessary  to  fix  liability  of  guar- 
antor  ; 584 

Form  of  guaranty 584 

Indorsement  and  transfer  of 585 

When  note  passes  by  delivery,  and  when  by  indorsement 585,  586 

Efifect  of  assigning  negotiabhe  note  without  indorsement 586 

Indorsement  of  notes  payable  to  bearer 586 

Indorsement  in  pencil  valid 586 

Indorsement  by  president  or  other  ofiBcer  of  a  corporation 586,  588 

Indorsement  by  infant  will  transfer  title 586 

Indorsement  by  married  women 587 

Indorsement  by  executor  or  administrator 587,  588 

Indorsement  to  officer  of  corporation 588 

Indorsement  by  assignee  of  insolvent 588 

Effect  of  indorsement  by  corporation 588,  589 


776  IN.DEX. 

BILLS  AND  NOTES  —  Continued.  paoe. 

Who  may  transfer  title  to,  by  indorsement 589 

Forged  indorsement  of  stranger  named  as  payee 589 

Drawee  pays  to  wrong  party  at  his  peril 589 

Names  of  parties  should  be  plainly  written 590 

Indorsemejit  may  be  made  in  pencil  or  by  initials 590 

Fraudulent  transfer  by  agent  of  payee  or  holder 590,  591 

Who  are  bona  fide  holders 590,  591 

Effect  of  notice  or  special  indorsement 591 

When  all  the  payees  or  indorsees  must  unite  in  transferring 591 

Indorsement  by  partners  named  as  payees  or  indorsees 191,  192 

Survivor  of  partnership  may  indorse ' 592 

Assignee  for  benefit  of  creditors  may  indorse ; 592 

Dishonor  of,  does  not  destroy  negotiabiUty 592 

Acceptance  after  protest,  valid 592 

Indorsement  or  acceptance  of  bill  before  drawn 593 

Indorsement  presumed  to  be  made  before  bill  or  note  is  due 593 

Law  of  place  of  indorsement  regulates  rights  of  parties 593 

Indorsement  of  bills  or  notes  payable  to  bearer  not  necessary 593 

Form  of  indorsements 593,  594 

Effect  of  indorsement  without  recourse 594 

Indorsement  in  blank,  or  in  full,  passes  title  of  indorsee 594 

Contract  of  indorsement 594,  599,  600 

When  indorser  becomes  charged 594 

Indorsement  on  the  face  of  a  note  valid 594 

Indorsement  on  a  paper  attached  to  a  note  valid 594 

Indorsements  in  blank  and  in  full 594 

Effect  and  advantages  of  an  indorsement  in  full ^ 595 

Effect  of  an  indorsement  in  blank 595  • 

Holder  of  note  indorsed  in  blank  may  fill  in  any  name 595 

Form  and  effect  of  a  full  and  special  indorsement 595 

Direction  to  pay  negotiable  note  to  a  person  named,  is  a  direction  to  pay 

to  that  person  or  his  order 595 

Indorsement  to  be  restrictive  must  contain  express  words  of  restriction . .   595 
Ee-indorsement  of  notes  indorsed  in  full  for  collection,  unnecessary  before 

action 595,  596 

Legal  effect  of  indorsement  in  blank  cannot  be  changed  by  parol  agreement  596 

Effect  of  indorsement  in  blank  cannot  be  changed  by  parol  evidence 596 

Stranger  writing  his  name  on  the  back  of  note  is  an  original  promisor  or 

surety 596 

Indorser  of  non-negotiable  paper  is  liable  as  guarantor  or  maker 597 

Right  of  holder  to  strike  out  all  indorsements  but  one 597 

Eight  of  indorser  who  has  parted  with  and  regained  possession  of  note  .  .  597 

Eight  of  payee  or  indorsee  to  make  restrictive  indorsement 597 

Effect  of  conditional  transfer  of 597,  598 

Cannot  be  transferred  in  part 598 

Indorsements  without  recourse 598 

Indorsement  by  agent  or  ofiicer  to  avoid  liability 598 

•Effect  of  delivery  with  or  without  indorsement 598 

Eelation  of  parties  to  indorsed  paper  as  to  liability 598,  599 


INDEX.  •  777 

BILLS  AND  liJOTES,—  Continued.  page. 

Liability  of  indorser  of  non-negotiable  note 599 

An  indorsement  does  not  become  operative  before  delivery 599 

Indorsement  of  note  after  maturity 599 

An  indorsement  admits  the  validity  of  prior  indorsement 599 

Indorser  liable  on  note  void  for  want  of  capacity  to  contract 600 

Liability  of  indorser  on  usurious  note 600 

Indorser  estopped  from  denying  existence,  validity  or  legality  of  the  con- 
tract assigned 600 

•  Acceptor  presumed  to  know  the  signature  of  drawer 600 

Acceptor  liable  to  bona  fide  holder  of  forged  paper 600 

Right  of  any  indorser  to  maintain  action  paid 601 

When  payee  may  recover  against  subsequent  indorser 601 

Parol  evidence  to  show  original  agreement  of  parties 601 

Second  indorser  not  liable  at  maturity  of  note,  cannot  be  made  liable  by 

act  of  payee 602 

Liability  of  indorser  of  note  before  delivery 602 

Effect  of  receiving  and  releasing  security  on  indorsement 602 

Lost  bills  and  notes 602 

No  action  at  common  law  on  lost  negotiable .   602 

Action  at  common  law  on  lost  non-negotiable  paper 602 

Recovery  on  notes  not  lost  but  not  in  possession  of  plaintiff 603 

Statute  of  New  York  as  to  lost  negotiable  bills  and  notes 603 

Evidence  to  sustain  action  on  lost  bill  or  note 603,  604 

No  bond  required  where  note  is  accidentally  destroyed 604 

Parol  evidence  of  the  contents  of  a  note  willfully  destroyed  inadmissible. .   604 

Bond  of  indemnity  to  maker  of,  lost 603,  605 

Contract  of  the  parties  not  changed  by  loss  of 606 

Loss  of,  does  not  dispense  with  demand  and  notice 606 

Notice  not  to  pay  or  accept  lost  paper 607 

Recovery  on  mutilated  bank  bills 606,  607 

Consideration  of  bills  and  notes 607 

Necessity  for  consideration 608 

Question  of  vaHdity  or  sufficiency  always  open  between  original  parties. .   608 

Consideration  for  negotiable  paper  presumed 608 

When  consideration  of,  may  be  impeached 608 

When  taken  after  dishonor,  taken  subject  to  all  defenses 608 

Taken  with  knowledge,  lets  in  equities. 608 

Presumed  to  have  been  taken  before  due  or  dishonored 608 

Presumption  must  be  rebutted  to  permit  defense 608 

Transfer  after  note  becomes  due 608 

Remedy  of  maker  where  paid  note  is  wrongfully  transferred 609 

Presumptions  in  favor  of  negotiable  paper 609 

Parol  evidence  to  contradict  bill  or  note 609,  610 

Parol  evidence  admissible  to  show  fraud  in  obtaining 610 

Mistake  in  amount  due  may  be  shown  between  original  parties 610 

Proof  of  condition  that  others  should  sign 610 

Drawer  cannot  sue  accommodation  drawee 610,  617 

Liability  of  accommodation  maker  or  acceptor 610 

Vol.  I.  —  98 


778  INDEX. 

BILLS  AND  NOTES  —  Continued.  page. 

Wheu  holder  of  paper  must  prove  value  paid  for  it 610 

Eflfect  of  fraudulent  diversion  of  note  from  its  original  object 611 

Bona  fide  holder  may  recover  on  negotiable  paper  diverted  from  its  origi- 
nal object 611 

What  is  paying  value 611,  612 

Accommodation  notes  received  as  collateral 612 

Defenses  to  accommodation  paper 612 

Stolen  bills  or  notes,  vi^hen  holder  may  recover 613,  614 

Who  is  a  bona  fide  holder 614,  616 

Want  of  consideration  as  a  defense  to 615 

Defense  of  traud,  duress,  etc 615 

Fraudulent  representations  in  obtaining 615 

Recouping  damages  for  fraud  or  breach  of  warranty  in  action  on 615 

Insufficiency  of  consideration 616 

Notes  taken  after  dishonor  subject  to  all  equities 617 

Want  of  consideration  to  accommodation  paper 617 

Action  by  accommodation  maker,  indorser  or  acceptor  fur  money  paid,  617,  618 

Presentment  for  acceptance 618 

Drawee  presumed  to  have  funds 618 

Presentment,  to  whom  made 619 

When  and  where  a  bill  should  be  presented  for  acceptance 619,  620 

Drawee  should  have  time  to  examine  accounts  before  acceptance .... 621 

Statutory  acceptance  by  retaining  bill 621 

Presentment  of  bills  drawn  on  more  than  one  person 621,  622 

Acceptance  of  bills 621 

Nature  of  the  contract  of  acceptance 621 

Relation  of  parties  to  accepted  bills  to  each  other 622 

Drawee  not  liable  before  acceptance 622 

Action  by  holder  against  drawee  for  refusal  to  accept 622 

Verbal  acceptance  vahd  at  common  law 622 

Mode  of  acceptance 623 

Statutory  provision  as  to  mode  of  acceptance  in  New  York 623 

Writing  name  across  the  face  of  a  bill  an  acceptance 623 

Checks  to  be  presented  for  payment  within  a  reasonable  time 624 

Acceptance  of  checks  unnecessary 624 

Certified  check  equivalent  to  accepted  bill 624 

Liability  on  certified  checks 624 

Absolute  acceptance 625 

Parol  evidence  inadmissible  to  show  acceptance  not  absolute ...   625 

Acceptance  of,  payable  at  a  particular  bank ...   625 

Conditional  acceptance  valid 625 

Conditional  acceptance  becomes  operative,  when 625 

Holder  not  bound  to  receive  conditional  acceptance ...   625 

Effect  of  receiving  conditional  acceptance 625 

Agent  has  no  authority  to  receive  conditional  acceptance 625 

Proof  of  demand  of  payment  at  a  place  specified  in  the  acceptance 626 

Proof  of  demand  at  proper  place  in  action  against  indorser 626 

Acceptance  of  forged  paper 508,  600,  626 

Proceedings  on  non-acceptance  . . . ; 626 


INDEX.  779 

BILLS  AND  NOTES  —  Continued.  page. 

Proceedings  on  non-acceptance  of  bills  and  non-payment  of  notes 626 

Contract  of  successive  indorsers  of  bills 626 

Failure  to  give  notice  of  non-acceptance. 627 

Reasons  for  requiring  notice  of  non-acceptance 627 

Notice  not  required  where  no  injury  could  result  from  want  of  notice 627 

Notice  to  actual  debtor  unnecessary 627 

Notice,  where  security  has  been  taken 627 

Presumption  of  loss  from  want  of  notice 627,  628 

Want  of  funds  in  hands  of  drawee,  as  an  excuse  for  not  giving  drawer 

notice * 628 

Accommodation  drawer  entitled  to  notice 629 

"When  fraud  does  not  dispense  with  notice 629 

Death  of  drawee  does  not  dispense  with  notice 629 

Statutory  rule  as  to  notice  in  New  York 626 

Notice  of  protest,  when  sent 629,  630,  631 

Death  of  holder  or  agent  as  an  excuse  for  delay  in  giving  notice 631 

When  notice  must  be  mailed 632 

Legal  holidays 632 

Forms  and  requisites  of  notice  of  protest.  .• 633 

By  whom  notice  must  be  given 634 

When  no  notice  necessary 634 

Protested  bill  need  not  be  presented  for  payment. 634 

Waiver  of  presentment  and  notice ^  .  .634,  635 

Presentment  for  payment,  and  payment 635 

Maker  and  acceptor  liable  without  demand 635 

Demand  of  payment  where  made 635 

Efifect  of  acceptor  or  maker  absconding 635,  636 

Effect  of  death,  insolvency  or  removal  of  maker  or  acceptor 636 

Who  should  present,  for  payment ' 637 

To  whom  presented  for  payment 637 

Where  presented  for  payment 637,  638 

How  presented  and  payment  demanded , 639 

Presentment  of  lost  bills  or  notes 639 

When  presentment  should  be  made 639,  640 

Days  of  grace 640,  641 

Payment,  by  whom 641 

Payment  by  mdorser,  how  far  satisfaction 642 

Payment,  to  whom  made 642 

Examination  of  genuineness  of  indorsements  before  payment 642 

When  holder  cannot  acquire  title  through  forged  indorsement 642 

Payment  of  forged  bill  or  check  or  raised  check 642 

Proceedings  on  non-payment.    Notice 644 

Duty  of  holder,  to  give  notice  of  dishonor 644 

Failure  to  give  notice  discharges  drawer  and  indorsers 644 

No  particular  form  of  notice  required 644 

Notice  may  be  oral  or  written 644 

Description  of  paper  in  the  notice 644 

Statement  of  presentment  and  demand 644 

Misdescription  of  the  bill  or  note  in  the  notice , 645 


780  INDEX. 

BILLS  AND  NOTES— Cbnifmr^d.  page. 

Service  of  notices  of  protest 645 

Time  in  which  notice  must  be  served 646 

Notice  before  demand  and  refusal  is  a  nullity 646 

Remedies  of  holder  of  bill  on  dishonor 647 

Liability  and  remedies  of  the  several  indorsers 647 

Notice  by  indorsers -  •  •  •   648 

Notice  to  a  partner,  notice  to  the  firm •. . .    648 

BILLS  OF  PEACE: 

Nature  of  the  remedy  by,  and  in  what  cases  allowed 649 

Nature  of  the  remedy 649 

To  quiet  claims  established  at  law 649 

After  several  trials  in  ejectment 650 

To  establish  rights  of  all  parties 650 

Where  one  claims  or  defends  a  right  against  many 650 

Suits  concerning  fisheries,  etc 650 

To  establish  right  of  common 651 

To  prevent  infringement  of  ferry  franchise 651 

Confusion  of  boundaries 651 

In  cases  of  mines  and  collieries 651 

When  the  remedy  will  not  lie 652 

Will  not  lie  to  establish  private  right  against  the  rights  of  the  public 652 

Will  not  lie  where  there  is  no  privity  between  the  parties 652 

Will  not  lie  where  there  is  no  legal  or  equitable  title 653 

Will  not  lie  where  there  is  an  adequate  remedy  at  law 653 

BILLS  QUIA  TIMET: 

When  the  remedy  will  lie 654 

Definition  and  nature  of 654 

For  the  prevention  of  anticipated  injuries 654 

To  preserve  property  for  the  party  entitled  thereto 654 

To  executor  or  trustee  from  mismanaging  estate 655,  660 

Application  of  remedy  to  future  interests  in  personalty 655 

To  prevent  breach  of  agreement  to  leave  property  to  a  person  at  death 656 

To  protect  the  rights  of  remaindermen 656 

To  prevent  waste  of  property  in  trust  for  maintenance  of  wife 656 

For  protection  of  sureties - 656 

To  restrain  cutting  of  timber 657 

To  prevent  interference  with  tenants 657 

Mode  of  obtaining  relief 657 

By  appointment  of  receiver 657,  658. 

For  whose  benefit  receiver  is  appointed .  6o8 

Rights  of  receiver  and  effect  of  his  appointment 659 

When  receiver  will  be  appointed 660 

By  ordering  money  paid  into  court 660 

By  ordering  defendant  to  give  security. 661 

By  writ  of  injunction 661 

BILLS  TO  REMOVE  CLOUD  ON  TITLE.     (See  Cloud  on  Title.) 

BLANK: 

Indorsement  in 594,  595,  596 


INDEX.  781 

BLANK  —  Continued.  page. 

Filling  blanks  in  notes 557,  558 

Filling  blanks  in  bonds 678 

BONA  FIDE  HOLDER  : 

Rights  of  hona  fide  holder  of  bond 689 

Rights  of  hona  fide  holders  of  bills 590,  600,  611 

Of  bills  of  lading 527 

BONDS : 

Nature  and  definition  of 670 

As  contracts  to  do  the  things  mentioned  in  the  condition 670 

Omission  of  words  "  heirs,  executors  and  administrators  " 670 

Parties  to 671 

Who  may  become  obligors 671 

Given  under  duress  of  imprisonment,  void 671 

Of  married  women 671 

Of  infants 671 

Of  persons  intoxicated  671 

Of  person  under  disability,  with  one  wlio  is  not 672 

Who  may  be  obligee 672 

To  aliens 672 

To  married  women 672 

Form  and  contents  of 672 

No  precise  form  of  words  necessary  to  create 672 

Consideration  of 673 

Bond  carries  evidence  of  good  consideration 673 

Illegal  consideration  vitiates 673 

Examples  of  bonds  void  for  illegality  of  consideration 673 

Seal 674 

At  common  law  must  be  sealed 674 

Laws  of  several  States  as  to  seal 675 

Several  obligors  may  adopt  one  seal 675 

Signing  and  sealing  binds  one  not  named  in  body  of 676 

Signing  and  sealing  between  the  penal  part,  and  the  condition 676 

Sealed  instruments  in  form  of  note  given  by  corporation 676 

Execution^  mode  of 676 

May  be  executed  by  attorney 676 

Authority  of  attorney  to  execute  must  be  under  seal 676 

Ratification  of  bond  by  agent  must  be  under  seal 676 

Signing  and  acknowledging  signature 676,  677 

Will  not  bind  one  whose  signature  was  procured  by  fraud 677 

Of  drunken  man,  void 677 

Purporting  to  be  by  principal  and  surety,  but  signed  by  surety  only 677 

By  principal  and  surety 677 

Fraud  in  co-obligors  will  not  vitiate 678 

Alteration  of » 678 

Filling  up  blanks  in 679 

With  blanks  left  for  names  of  obligees,  nullities 678 

Delivery  and  acceptance  of 679 

Delivery  essential  to  validity  of 679 


782  INDEX. 

BONDS —  Continued.  page, 

What  is  a  sufficient  delivery  of '. 679 

Cannot  be  delivered  to  obligees  in  escrow 679,  680 

Delivery  to  one  obligee  delivery  to  all 679 

Acceptance  of 680 

Take  effect  from  delivery 680 

Constrnction  and  effect  of 680 

Recitals  in 680 

General  rules  of  construction  of 680 

Joint  and  several,  but  signed  by  one  only 681 

Particular  v^ords  and  phrases  in,  construed 682 

Validity  of 683 

Examples  of  invalid  bonds 683 

Validity  of  statutory  bonds 684 

Void  in  part,  and  valid  in  part .' 684 

Rules  as  to  validity  of 685 

Place  of  performance  of 685 

Death  of  obligor 685 

Breach  of. ; 686 

What  constitutes  a  breach  of 686 

Release  and  discharge 687 

One  of  two  several  obligors  may  be  released 687 

Release  of  one  of  several  joint  obligors 687 

Release  of  one  of  several  sureties 687 

Bankruptcy  of  principal  does  not  discharge  surety 687 

What  amounts  to  a  discharge 687 

Negotiable 688 

•What  bonds  are  negotiable 688 

Rights  of  bona  fide  holders  of  negotiable 689 

Title  of  bona  fide  purchasers  of  stolen  bonds 689 

Government  bonds,  when  taken  subject  to  all  equities 689 

Official  bonds 689 

Construction  and  effect  of 689 

Validity  of '. 690 

Rights  and  liabilities  under 691 

Duration  of  obligation 691 

Person  first  obtaining  judgment  on,  entitled  to  full  amount  of  his  demand  691 

Breach  of  official  bonds 691 

Discharge  of  official  bonds 691 

Discharge  of  surety,  discharges  co-sureties 692 

Cancellation  of,  by  unauthorized  officer 692 

Of  United  States  officers 692 

Of  postmasters 692 

Of  sheriffs,  constables,  etc 693 

Indemnity  bonds 693 

In  particular  cases 694 

To  pay  money 694 

Where  no  time  of  payment  is  specified,  due  immediately 694 

Payable  on  demand,  payable  on  day  of  date 694 

Payable  on  or  before  a  certain  day,  saved  by  payment  before  action 694 


INDEX.  783 

BONDS  —  Continued.  •  page. 

Acceptance  of  principal  only  will  not  save  forfeiture  of  penalty 694 

Tender  of  payment  of  principal  before  day  of  payment  will  not  stop 

interest 694 

Action  on  bonds  for  the  purchase  of  real  estate 694 

To  perform  services 694 

Tender  of  performance  of  services  equi^lent  to  performance 694 

Tender  of  chattels  on  the  day  prevents  accumulation  of  interest 694 

Bonds  conditioned  for  support  and  maintenance  construed 695 

Actions  upon 695 

Jurisdiction  as  to  amount,  determined  by  penalty 695 

Place  of  payment  fixes  jurisdiction ; 695 

Election  between  debt  and  covenant 695    696 

When  an  action  lies  on 696 

When  right  of  action  accrues  on  bonds  of  indemnity  against  "liability,"  696 

Demand  before  suit,  when  unnecessary 696 

Upon  what  state  of  facts  an  action  will  lie 697 

Action  upon  bonds  payable  in  installments 697,  698 

Obligee  may  enforce  bond  in  which  he  has  no  beneficial  interest 698 

Payable  on  ratification  of  treaty  with  Confederate  States 698 

Conditioned  for  delivery  of  Confederate  bonds 698 

Defenses  to  actions  on 699 

Fraud,  duress  or  illegality  of  consideration 699 

Illegality  must  be  clearly  pleaded 699 

In  restraint  of  trade,  void 699 

Void,  as  against  pubUc  policy 699 

Illegality  created  by  statute 699 

Given  to  compound  a  felony,  void 700 

'Non-performance  of  conditions  precedent 700 

Defenses  by  surety 700 

Denying  execution  of 700 

Defendant  cannot  plead  matter  contradictory  to  bond 700 

Mistake  as  to  legal  effect  of,  no  defense 700 

False  representations  as  to  amount 700,  701 

Forgery  of  signature  of  surety 701 

Impeaching  consideration  of 701 

Averments  of  fraud 701 

What  false  representations  at  time  of  execution  will  vitiate 701,  702 

Cannot  be  impeached  for  fraud  known  at  time  of  execution 702 

Obligee  must  participate  in  the  fraud  to  vitiate   702 

Fraud  in  obtaining  signature  of  surety 702 

Proof  of  misstatements  to  impeach 702 

Performance  of  condition 703 

Excuse  for  non-performance  of  condition 703 

Party  preventing  performance  cannot  take  advantage  of  non-performance,  704 

Discharge  by  payment 704 

Presumption  of  payment  after  twenty  years 704 

Rebutting  presumption  of  payment 704 

Other  defenses  to 705 

Remedy  on  lost 705 


764  IT^^DEX. 

BONDS — "Continued.  page. 

Plaintiff  must  amend  if  bond  is  lost  after  declaration  filed 705 

Relief  at  law  or  in  equity 705 

BOUNDARIES : 

How  established  between  indiridnal  proprietors 707 

Defined   707 

Lines  between  boundaries  fixed  it  the  angles  presumed  to  be  straight ....  707 

Natural  boundaries 707 

Artificial   , 707 

Public  street  or  highway 708 

Highways  are  easements 708 

Right  of  proprietor  of  soil  in  highways 708 

Adjoining  lands  may  be  conveyed  without  highway 708 

Sale  of  land  bordering  on  highways 709,  716,  717 

Sea  shore,  what  constitutes " 710 

Title  to  land  betweeri  high  and  low-water  mark 710 

What  is  conveyed  by  deed  of  lands  bounded  on  a  sea  shore 710 

Lakes  or  rivers 711 

Bank  and  shore  of  river,  etc.,  defined 711 

What  is  conveyed  by  deed  of  lands  bounded  on  rivers 711,'  712,  716 

Lands  bounded  on  lakes  or  ponds 712 

Title  to  hne  trees 713 

By  ditch  or  wall 713 

Ownership  of  line  fences 713 

Marshaling  boundaries 713 

Construction  of  grants  in  respect  to 714 

When  monuments  govern 714,  715 

When  courses  and  distances  govern 714,  715 

What  questions  as  to,  are  for  the  court '715 

Lands  bounded  on  private  ways 717 

Sides  of  buildings  as 717 

Effect  of  acquiescence  in 717 

Special  agreements  as  to 718 

When  party  estopped  from  claiming  mistake  as  to 719 

When  an  agreement  as  to,  not  binding 719 

Settlement  of  disputed  boundaries 720 

Ejectment   720 

Settlement  of,  in  equity 720,  721 

BREACH  OF  MARRIAGE  PROMISE : 

Action  for 722 

Nature  of  contract  to  marry 722* 

From  what  circumstances  a  promise  may  be  inferred 722,  723 

Promises  to  marry  at  a  future  time 723 

Promises  must  be  reciprocal    723 

Promise  by  deed 723 

Proof  of  assent 724 

Conditional  promise  valid 724 

Contracts  in  restraint  of  marriage 724 

Marriage  brokerage  bonds  invalid 724 


INDEX.  735 

BREACH  OP  MARRIAGE  PROMISE-  Continued.  p^oe. 

Time  of  performance yoi 

When  there  is  a  breach  of  the  promise  ....  >,oa 

Vahdityof '■' irJl 

Made  when  both  parties  were  married \\\ 725 

Made  when  the  defendant  only  was  married .'."!.'.'.'!.'.'.'!.'.' 725 

Made  in  consideration  of  iUicit  intercourse 725 

When  void  under  statute  of  frauds !!!!!!.*!*!!!"    "  725 

Excuse  for 

Brutality  of  party  as  an  excuse  for 725 

Previous  insanity  as  an  excuse  for *'.'.*,'..*.*.' 726 

Previous  marriage  or  unchastity 726 

Abandonment  of  contract  to  marry .'.*.*."'.'* "26 

Who  may  maintain ^^^ 

Personal  representatives  cannot  bring ^  [  *  |  ^ 727 

Damages  in  action  for,  a  question  for  the  jury '*.'.'.*..'.*.'.*.*."  727 

Excessive  damacres ,.„„ 

o        727 

Matters  in  aggravation  of  damages ^27 

Failure  to  prove  unchastity >-2g 

Proof  of  seduction  in  aggravation  of  damages 728 

What  may  be  considered  by  the  jury  in  assessing  damages .".'.*.'.'.*.'  728 

BRIDGE : 

General  rules  of  law  relating  to 729 

Definition  of ^ 

Is  either  public  or  private 729 

Private  bridge  defined .'.'..*.*.'* '"29 

Public  bridge  defined.- '.'.*.',*.".*.*"" ''29 

How  established ^„„ 

Congress  has  power  to  legalize .'.'.'.'.'.'.' 730 

When  legislative  authority  necessary  to  erect .*.'."!   730 

Authority  to  erect  toll-bridge  connecting  two  States 730 

Liability  for  unnecessary  interruption  of  navigation .'.".'.'.'.'.'.  730 

Legislature  may  authorize  new  bridge  near  old  one .'.'.'."."   731 

When  a  nuisance 70, 

Acceptance  of  dedication  of 731 

Reparation  of „„. 

English  common  law  as  to  repair  of ' ' 73^^ 

Who  must  repair,  in  this  country 73^ 

Pennsylvania  decision  as  to  duty  to  repair .     732 

Remedies  for  neglect  to  repair 732 

Duty  to  keep  bridges  in  repair '  ] 732 

Indictment  for  failure  to  repair -32 

Mandamus  to  compel  repair 732 

Quo  warranto  to  compel  repairs  imposed  by  charter  of  corporation! ! ....   732 

Damages  for  injuries  sustained  by  failure  to  repair 732 

Action  for  damages  against  public  bodies  chargeable  with  duty  to  repair,  732 

Exemplary  damages  for  injuries  received  from  defects  of .'  732 

Defects  in  bridges  over  public  road '   733 

Toll-bridges  are  public  highways  .*.".'.".*.*..'"."  733 

Vol.  I. —99 


786  INDEX. 

BRIDGE  —  Continued.  page. 

Power  to  erect  toll-bridge 733 

Protection  of  franchise  by  injunction 733 

Payment  of  tolls  can  be  enforced  only  at  gate  or  toll-house -. 734 

Corporation  must  comply  with  terms  of  its  charter  before  enforcing  pay- 
ment of  toll 734 

Contracts  to  permit  persons  to  pass  toll  free,  valid 734 

Exemption  by  charter  from  payment  of  toll 734 

Liabilities  of  owners  of  toll-bridge 734 

Abatement  of  bridge  as  a  nuisance  for  failure  to  put  in  a  draw 735 

BROKERS: 

Contracts  by 79 

Distinction  between  auctioneers  and  brokers 476 

BULL: 

Injuries  by  ferocious  bull 318 

BURGLARY : 

Killing  of  person  attempting  to  commit,  lawful 54 

CANALS: 
General  rules  of  law  relating  to 736 

Definition  of  term  "  canal " 736 

Are  highways 736 

Canal  boats  are  not  vessels  of  the  United  States 736 

Canal  boats  need  not  be  registered 736 

Construction  and  management  of 736 

By  whom  constructed  and  managed 736 

Taking  private  property  for 736 

Damages  to  individuals  for  enlargement  of 737 

Keeping  in  repair 737 

Duties  to  keep  bridges  over 738 

Tolls 738 

Right  to  collect  tolls  on 738 

Negligence  of  companies 738 

Liability  of  officers  in  charge  of 738 

CANCELLATION : 

Terms  upon  which  a  court  of  equity  will  decree  the  cancellation  of  usuri- 
ous agreement 156 

CARRIERS : 

Liable  for  goods  delivered  to  their  agents 287 

CASHIER: 

Liability  of,  to  bank,  for  negligence 251,  520 

Powers  and  duties  of 518 

Is  the  managing  agent  of  the  bank 518 

Ordinary  duties  of 518 

When  acts  of,  binding  on  the  bank 518,  519 

What  acts  and  declarations  of,  will  not  bind  the  bank 519 

Is  bound  to  use  reasonable  diligence   and  skill 520 

CAT: 

Wrongful  killing  of,  actionable 304 


INDEX.  787 

CATTLE  (See  Animals) :  page. 

Wrongful  injuries  to 305 

Injuries  to,  while  trespassing 305 

Killing  oFt  on  unfenced  railways 305 

Communicating  disease  to 307,  317 

Duty  of  owner  to  keep  cattle  from  trespassing 307 

Owner  not  liable  for  trespass  of,  while  in  care  of  agistor 308 

Liability  of  agistor  for  injuries  to 310 

Injuries  to,  from  neglect  to  fence 317 

Distress  and  seizure  of 62,     63 

CERTIFICATES  OF  DEPOSIT: 

Nature  of 511 

When  void 511 

CERTIFIED  CHECKS.     (See  Checks.) 

CHATTEL  NOTE  (See  Bills  mid  Notes) : 

Payable  on  demand,  when  no  time  specified 119,  579 

Where  payable  when  no  place  is  specified 119,  579,  581 

Not  negotiable 574 

Consideration  for,  when  presumed 574 

When  negotiable 575 

Are  valid 575 

Demand  of  payment  of 579,  580 

Notice  of  delivery   under 580 

CHECK  (See  BUls  and  Notes)  : 

Refusal  of  bank  to  cash,  when  actionable, 148,  505 

Nature  and  requisites  of. 505 

Effect  of  giving,  upon  funds  in  bank 505 

Holder  cannot  sue  bank  for  refusing  to  pay 505 

In  form  and  effect  hke  inland  bill  of  exchange 505 

Distinction  between  check  and  bill 505,  506 

When  holder  of,  can  recover  against  indorser 506 

Delay  in  presenting  check  for  payment 506 

Drawn  without  funds  to  meet  it 506 

Stopping  payment  of 606,  507,  643 

Post-dated  checks  payable  on  day  of  date 507 

Certified 507 

Effect  of  certifying  checks 507    624 

Certified  raised  checks 507    508 

No  recovery  on  check  showing  that  it  was  improperly  certified 624 

Forged 508 

Drawee  cannot  recover  back  money  paid  on  a  forged  check 508    643 

Bank  not  liable  for  forged  indorsements  on   508 

Adopting  forged  certification  binds  the  bank 508 

Defined 534 

Should  be  presented  for  payment  within  a  reasonable  time 624 

Need  not  be  accepted 624 

CHOSE  IN  ACTION  : 

Assignment  of,  prohibited  at  common  law   81,  356,  359,  380 

Assignment  of 380 


788  INDEX 

CB.OSE  m  ACTlOl^  —  Continued.  page. 

Rights  of  assignee  of 364 

Assignor  entitled  to  indemnity  against  costs  of  suit  brought  on 366 

Action  at  law  by  assignee  of : 368 

CITIZENS : 

Who  are,  in  contemplation  of  attachment  laws 420 

CLERK : 

Not  authorized  to  sign  employer's  name  to  notes 223 

Authority  to  sign  notes  may  be  implied  from  former  acts 223 

CLOUD  ON  TITLE,  BILL  TO  REMOVE: 

What  constitutes  cloud  on  title 662 

Jurisdiction  to  remove,  in  equity 663 

Ground  of  exercise  of  jurisdiction  to  remove 663 

Bill  lies  to  prevent  as  well  as  remove 663 

Equity  will  remove,  where  remedy  at  law  exists 663 

Who  may  maintain  bill  to  remove 663 

Persons  out  of  possession  may  maintain  action  to  remove 663 

When  vendee  of  lands  may  maintain  bill  against  vendor  in  possession 664 

Grantor  in  warranty  deed  may  maintain  bill 664 

Where  title  rests  on  statute  of  limitations 664 

In  what  cases  maintainable 664 

Unsatisfied  mortgage,  or  unauthorized  deed 664 

Forged  deed 664 

Deed  executed,  but  not  delivered 664 

Threatened  sale  of  land 664 

Claim  which  cannot  be  enforced  at  law  or  equity 665 

Lunatic  vendor 665 

Bond  for  a  deed 665 

Tax  or  assessment 665 

When  the  remedy  will  not  lie 666 

When  party  is  out  of  possession 666 

When  complainant's  title  is  doubtful 666 

Instrument  void  on  its  face 666 

Other  cases  where  the  remedy  will  not  lie 667,  668 

Mode  of  granting  relief 668 

COLLECTOR: 

Illegality  of  bonds,  no  excuse  for  not  paying  over  tax  collected  to  meet 

them 102 

COLLECTION : 

Attorney  not  liable  for  moneys  collected  before  demand    461 

Attorney  liable  for  collections  made  by  assistant 464 

Indorsement  of  bills  for 595 

COMMODATUM  (See  Bailment) : 

Defined   495 

COMMON : 

Bill  of  peace  will  lie  to  establish  right  of 651 


INDEX.  789 

CONCEALMENT:  page. 

Of  debtor  a  ground  for  issuing  an  attachment 417 

Meaning  of  the  term  as  used  in  attachment  bonds 417 

CONDITION: 

Conditional  contracts 76 

Conditions  precedent  and  subsequent 76 

CONFIDENCE : 

Trust  and  confidence  as  a  consideration 101 

CONSENT : 

To  an  act  is  a  bar  to  an  action  for  injury  resulting  therefrom 36,  146 

CONSCIENCE  : 

Obligations  embraced  in  the  term  as  used  in  equity 25 

CONSIDERATION  (See  Contracts;  Bills  and  Notes;  Bonds,  etc.)  : 

Of  contracts 90 

A  consideration  necessary 90,  495,  496 

Kinds  of 90 

Benefit  or  injury  as  a  consideration 91 

Adequacy  of 93 

Prevention  of  litigation  as 95 

Forbearance  as 96 

Assignment  of  debt  or  right  of  action 98 

Assignment  or  sale  of  property 99 

Services  rendered,  rewards  oSered 99 

Trust  and  confidence  as 102 

Moving  from  third  persons  or  strangers 103 

Gratuitous  promises,  subscriptions  and  contributions 104 

Illegality  of 106 

Impossible 106 

Void  in  part 107 

Moral 107 

Executed 109 

Executory  110 

Concurrent 110 

Continuing 110 

Failure  of * Ill 

Impeaching Ill 

Efiect  of  seal  upon Ill 

For  the  grant  of  an  annuity 324 

Promise  to  sustain  assumpsit  must  be  founded  on 374 

To  support  contract  of  bailment 495,  496 

Of  bills  and  notes 563,  607 

Implied  for  negotiable  bills  and  notes 563 

Burden  of  impeaching  consideration  of  negotiable  note  rests  upon  defend- 
ant    563,  609 

Words  "  for  value  received,"  prima  facie  proof  of 563 

Sufficiency,  validity,  or  legality  of,  open  as  a  defense  between  original  par- 
ties     608 

When  consideration  of  note  must  be  proved 608 

Presumption  of 608,  609 


790  INDEX. 

CONSIDERATION— Coniinwed  •  page. 

When  consideration  may  be  inquired  into 608 

Total  want  of  consideration  of  note 615 

Inadequacy  of  consideration  of  note,  no  defense 616 

Accommodation  paper 617 

Of  bonds 673 

Illegality  of,  vitiates  bond 673 

Examples  of  illegal  consideration ". 673 

Defense  of  illegality  of,  in  actions  on  bonds 699,  700 

Impeaching  consideration  of  bonds 701 

CONSTRUCTION : 

Of  contracts 114 

Is  for  the  court 114 

When  for  the  jury 115 

Is  the  same  in  law  or  in  equity 116 

Intention  of  the  parties  controls 116 

Situation  of  parties  and  evidence  of  surrounding  circumstances 118 

To  be  reasonable. .' 119 

To  be  liberal 120 

To  be  favorable 120 

Words  construed  according  to  their  popular  sense 121 

Technical  words,  how  construed 121 

To  be  upon  the  whole  contract 122 

Of  inconsistent  clauses 123 

When  against  grantor,  promisor,  etc 124 

Of  general  words 125 

Grammatical  rules,  how  applied  in 125 

Transposition  of  words  or  clauses '. 126 

Presumptions  in  relation  to 127 

Of  contracts  partly  printed,  partly  written 127 

Effect  of  custom  or  usage. 127 

Of  the  law  of  place 129 

Of  time  of  contract 130 

Of  parol  evidence  to  explain  or  contradict  contracts 131 

Of  statutes  authorizing  proceedings  by  attachment 411 

Of  bonds 680 

Recitals  in  bonds 680 

General  rules  for  construction  of  bonds 680 

Of  particular  words  and  phrases  in  bonds 682 

Illegality  of  considei:;ation  of  bonds 683 

Of  official  bonds 689 

Of  grants  in  respect  to  boundary 714 

CONTEMPT : 

Bringing  action  in  the  name  of  a  fictitious  person  is 142 

CONTRACTS : 

General  principles  of *  70 

Importance  of  a  knowledge  of  the  laws  of 3 

Definition  of  the  term  "  contract" 70,     71 

Requisites  of 70 


INDEX.  791 

COl^TRACTS— Continued.  page. 

Mutuality  of  obligation 71 

Classification  of 71 

Different  kinds  of 72 

Contracts  of  record 72 

Requisites  of  a  deed 72 

Simple  or  unsealed 72 

All  contracts  not  under  seal  are  contracts  by  parol 72 

Express  or  implied 72,  73 

Nature  of  implied  contracts 73 

Promise  not  implied  where  there  is  an  express  agreement 74 

Illustrations  of  implied  promises 74 

Executed  and  executory 74 

May  be  executed  as  to  one  party  and  executory  as  to  the  other 74 

Entire  and  divisible 75 

Full  performance,  when  a  condition  precedent  to  right  of  action  on 75 

An  entire  contract  cannot  be  rescinded  in  part  and  enforced  in  part 76 

Entire  contract  may  be  apportioned  by  consent 76 

Waiver  of  performance 76 

Absolute  or  conditional 76 

Conditions  precedent  or  subsequent 76 

Time  for  performance  of,  where  no  time  is  fixed 76 

Joint  and  several  and  joint  or  several 76 

Mode  of  determining  whether  contracts  are  joint  or  several 76,  77 

Parties  to 77 

Must  be  at  least  two  parties  to 77 

By  agents 77 

Whatever  a  person  may  himself  do,  he  may  do  by  his  agent 77 

Who  may  be  agents 78 

By  partners 78 

By  executors  and  administrators 78 

By  trustees ." 78 

Duties  and  liabiUties  of  trustees 78 

By  guardian  for  ward 79 

By  or  with  corporations 79 

By  joint-stock  companies 79 

By  auctioneers 79 

By  brokers 79 

By  factors 80 

Distinction  between  factors  and  brokers,  and  their  powers 80 

When  a  factor  is  entitled  to  a  del  credere  commission 80 

By  shipmasters 80 

Authority  of  shipmasters  to  make 80 

Change  of  parties  to,  by  novation  or  substitution 80 

Novation  defined ; 80 

Character  of  the  contract  of  novation 81 

Requisites  of  a  strict  novation  at  civil  law 81 

Change  of  parties  to,  by  assignment 81 

Nature  of  a  chose  in  action 81 

Chose  in  action  not  assignable  at  common  law 81 


792  INDEX. 

CONTRACTS  —  Continued.  paob. 

Assignment  of  chose  in  action  recognized  in  equity 81 

Asseut  of  parties  to 82 

Must  be  assent  of  parties  to  every  valid  contract 82 

Assenting  parties  must  be  competent  to  contract 82 

What  constitutes  a  valid  assent 83 

Three  requisites  of  a  vahd  assent 83 

A  proposal  not  assented  to  does  not  constitute  a  contract 83 

Modified  acceptance  of  a  proposition  must  be  itself  accepted 83 

An  oflfer  not  accepted  is  not  binding  and  may  be  retracted  before  accept- 
ance   84 

Assent  procured  by  fraud  renders  contract  voidable 84 

Assent  how  affected  by  a  mistake  as  to  the  law 84 

Every  person  presumed  to  know  the  law 84 

Maker  of  contract  presumed  to  act  with  full  knowledge  of  its  legal  inci- 
dents and  consequences 84 

Mistake  as  to  the  law  relating  to  a  contract  does  not  impair  its  validity. . .  84 

Person  not  presumed  to  know  foreign  laws 85 

Mistake  as  to  foreign  laws  deemed  a  mistake  in  fact 85 

Assent,  how  affected  by  a  mistake  in  fact 85 

Entered  into  under  mistake  in  fact,  are  voidable 85 

No  presumption  of  knowledge  of  facts 85 

Assent  obtained  by  dm-ess  will  not  create  a  valid  contract 85 

Assent  may  be  given  and  contracts  made  by  letter 86 

Offer  made  by  letter  may  be  retracted  before  acceptance  mailed 86 

Made  by  letter  are  complete  when  acceptance  mailed 86 

Retraction  of  offer  must  be  received  before  acceptance  mailed 86 

Retraction  takes  effect  from  time  of  receipt 86 

Offer  by  letter  not  answered  in  reasonable  time  creates  no  contract 86 

Effect  of  delay  or  miscarriage  of  letter 86 

Verbal  rejection  of  offer  by  letter  relieves  person  offering  from  liability ...  86 

Proposition  for  a  contract 87 

Offer  limiting  the  time  or  manner  of  acceptance 87 

Statement  of  price  of  lands,  not  a  proposal  to  sell 87 

Assent  given  or  contracts  made  by  telegraph 87 

Offer  and  acceptance  by  telegram  a  valid  contract 87 

Offer  by  letter  and  acceptance  by  telegram 88 

Time  of  sending  acceptance  fixes  time  of  completion  of  contract 88 

Parties  using  telegraph  not  bound  by  errors  of  operator 88 

When  telegram  not  sufficient  to  take  contract  out  of  Statute  of  Frauds. . .  89 

Telegrams  competent  evidence 89 

Contract  by  telegraph  must  be  proved  by  original  message,  if  to  be  found,  89 

When  copy  telegram  is  admissible  as  evidence 89 

Consideration  of » 90 

Without  consideration  void 90 

Consideration  for  contracts  under  seal  presumed 90 

Consideration  of  notes  and  bills 90 

Consideration  of  simple  contract  need  not  be  expressed 90 

Kinds  of  consideration 90 

Valuable  considerations,  how  classified 90 


INDEX.  793 

CONTRACTS  —  Continued.                                                                                     page. 
Consideration  may  be  a  benefit  to  the  promisor  or  an  injury  to  the  prom- 
isee   4 91 

Need  not  be  concurrence  of  benefit  to  one  and  injury  to  the  other 92 

Where  there  is  no  detriment  or  benefit  to  either  party  there  is  no  consider- 
ation    92 

Examples  of  sufficient  consideration 92,  93 

Benefit  need  not  be  direct  or  certain 92 

Slight  advantage  to  one  and  trifling  inconvenience  to  the  other  sufficient 

consideration 92,  94 

Adequacy  of  consideration 93 

Law  does  not  inquire  as  to  value  of  consideration 93 

Slight  consideration  sufficient  to  support 94 

•    Promise  to  pay  if  claimant  will  make  affidavit  to  his  claim 94 

Promise  to  pay  such  sum  as  third  person  shall  name 94 

Promise  to  be  satisfied  if  other  party  will  swear  that  nothing  is  due 94 

Additional  security  as  a  consideration 94 

Worthless  consideration  will  not  support 94 

Receipt  in  full  for  part  payment  of  a  demand 95 

Examples  of  inadequate  consideration 95 

G-ross  inadequacy  of  consideration  creates  presumption  of  fraud 95 

Prevention  of  litigation  as  a  consideration^ 95 

Promises  to  withdraw  or  withhold  legal  proceedings 96 

Action  will  not  lie  upon  tlie  compromise  of  an  untenable  claim 96 

Forbearance  as  a  consideration 96 

Promise  to  give  further  time  a  good  consideration 97 

Promise  to  pay  debt  of  another  on  condition  of  forbearance 97 

Adjournment  of  a  trial,  a  consideration  for  a  promise 97 

Forbearance  to  prosecute  unfounded  claim 97 

Benefit  by  the  delay  to  t.he  promisor  not  necessary 98 

Waiver  of  a  legal  right  on  request  of  another  a  good  consideration  for 

promise  by  him 98 

Assignment  of  a  debt  arising  upon  contract 98 

Rights  of  assignee  at  common  law  and  under  the  Code 98 

Guaranty  for  payment  of  a  note  is  assignable 99 

Balance  due  on  unsettled  account  assignable 99 

Assignment  of  claim  of  sheriff  for  services  rendered  and  to  be  rendered. .  99 

Assignment  by  public  officer  of  unearned  salary 99 

Assignment  or  sale  of  property 99 

Services  rendered  and  rewards  offered 99 

Liability  of  sheriff  on  public  offer  of  a  reward 100 

Offer  of  reward  by  person  having  no  interest  in  the  subject-matter 100 

Rewards  for  apprehension  of  criminal  and  recovery,  etc 100 

Rewards  for  information  leading  to  detection,  etc 100 

Enforcement  of  offer  of  reward  to  public  officer 100 

Construction  of  offer  of  reward  as  to  time 101 

Evidence  to  sustain  action  on  offer  of  reward 101 

Trust  and  confidence  as  a  consideration 101 

Acceptance  of  a  trust  creates  an  obligation  to  fully  perform  it 101 

Vol.  L  — 100 


794  INDEX 

CONTRACTS— (7onfen«ed.  page. 

Money  collected  by  town  officers 101,  102 

Mutual  promises  as  a  consideration 102 

A  promise  a  good  consideration  for  a  promise 102 

Founded  upon  mutual  promises  invalid  if  either  promise  void 102 

Promise  of  marriage  by  infant,  a  good  consideration  for  promise  of  mar- 
riage by  adult 102 

Mutual  promises  must  be  concurrent  and  obligatory  on  both  parties  at 

same  time 102 

Considerations  moving  from  third  persons 103 

Enforcement  of  promise  for  benefit  of  third  person 103 

G-ratuitous  promises  void 104 

Breach  of  voluntary  promise  does  not  give  right  of  action 104 

Promise  to  do  vs^hat  one  is  legally  bound  to  do  is  void 104 

Promise  to  give  at  death  of  promisor 104 

Pron^ise  to  pay  for  past  services  rendered  without  the  knowledge  of  the 

promisor  invalid 104 

Subscriptions  for  charitable  purposes,  when  binding 104,  105 

Illegality  of  consideration 106 

Illegality  of  any  part  of  an  entire  consideration  for  a  promise  renders  the 

whole  contract  void 106 

Founded  upon  two  considerations,  one  valid  and  the  other  void 106 

Impossible  considerations 106 

Founded  upon  impossible  consideration,  void 106 

Not  void  because  performance  difficult 106 

Non-delivery  of  goods  not  to  be  found  in  market 107 

Non-delivery  of  goods  at  an  agreed  time  by  reason  of  freshet 107 

To  do  what  can  only  be  done  by  aid  of  parliament 107 

Considerations  void  in  part 107 

Maxim  "  void  in  part,  void  in  toto,"  erroneous 107 

A  mere  moral  obligation  alone  will  not  sustain  a  promise 107 

Voluntary  promise  to  pay  debt  of  third  person  not  binding 108 

No  '  implied  promise  to  pay  for  services  of  an  infant  by  one  standing  in 

loco  parentis 108 

Liability  of  father  for  medical  services  rendered  infant  while  abroad 108 

Promise  of  father  to  pay  for  past  services  rendered  adult  son,  invalid 108 

Promise  of  son  to  pay  for  necessaries  previously  furnished  his  father 

invalid '. .    108 

Promise  by  grandfather  to  pay  for  past  services  rendered  grandson 108 

Initiation  fees  of  a  member  of  a  benevolent  society 108 

Executed  considerations 109 

Right  of  surety  to  recover  back  money  paid  for  his  principal 109 

Executory  considerations 110 

Concurrent  considerations 110 

Continuing  considerations 110 

What  considerations  are  continuing 110 

Failure  of  consideration Ill 

Immediate  parties  to  contract  may  avoid  it  for  total  failure  of  considera- 
tion    in 

For  sale  of  property  not  in  existence,  void Ill 


INDEX.  795 

CONTRACTS  —  Continued.  ■  page. 

Purchaser  may  rescind  contract  where  title  of  property  purchased  totally 

fails Ill 

Impeaching  consideration Ill 

Consideration  of  negotiable  promissory  note  in  hands  of  bona  fide  holder 

cannot  be  impeached Ill 

EfiFect  of  a  seal  upon  a  consideration Ill 

Forms  of  contracts 112 

Of  writing  contracts 112 

May  be  written  in  pencil 112 

Printing  is  writing  within  the  meaning  of  the  statute 112 

Statute  of  frauds,  effect  of 112 

Contents  of  written  contracts 112 

Contract  in  writing  ought  to  contain  entire  terms 112 

Certainty  a  requisite  in  contracts .• 113 

In  writing  must  show  who  are  the  parties  to  them 113 

Lease  must  show  the  length  of  the  proposed  term 113 

Signature  to 113 

A  printed  signature  to  a  contract  required  to  be  subscribed,  is  not  suf- 
ficient    112 

Attestation  of  contracts 113 

Recording 114 

Construction  of 114 

Construction  of  contracts  is  for  the  court '. 114,  115 

Terms  of  an  oral  contract  a  question  for  a  jury 115 

Meaning  of  technical  words  a  question  for  the  jury 115 

Construction  the  same  in  law  and  in  equity 116 

Intention  of  parties  controls 116 

Rules  of  construction 116,  117,  118 

Entire  contract  should  be  considered  in  giving  it  construction 117 

Plain  meaning  of  the  language  used  will  be  adopted 113 

Situation  of  parties  and  evidence  of  surrounding  circumstances 118 

Construction  to  be  reasonable 119 

Construction  preferred  which  will  give  effect  to  contract 119 

Agreement  to  pay  interest  will  be  construed  to  mean  legal  interest 119 

If  no  time  for  performance  be  fixed,  a  reasonable  time  will  be  given 119 

Chattel  note  not  fixing  day  or  place  of  payment  is  payable  on  demand. . .    119 

Place  of  payment  of  chattel  note  where  no  place  is  mentioned 119 

To  do  work,  imply  that  the  workmen  will  use  reasonable  skill 119 

Construction  to  be  liberal 120 

Construction  of  terms  "  as  soon  as  possible,"  etc 12C 

Construction  of  a  promise  to  pay  at  a  specified  time  or  as  soon  as  a  certain 

event  shall  occur 120 

Construction  to  be  favorable  to  maintenance  of  contract 120 

Construction  to  be  adopted  which  will  render  contract  valid 121 

Words  to  be  construed  according  to  their  popular  sense 121 

Technical  words,  how  construed 121 

Construction  to  be  upon  the  whole  contract 122 

Construction  of  contracts  made  up  of  several  instruments ■ 123 

Inconsistent  clauses  in  contracts 123 


796  INDEX. 

CONTRACTS— Confonwcd.  page. 

Doubtful  or  ambiguous  terms  construed  most  strongly  against  the  grantor, 

promisor,  etc 124 

Party  not  bound  to  do  acts  not  contracted  for 124 

Party  bound  by  his  legal  agreement  even  though  he  misapprehended  its 

legal  effect 124 

General  words  or  terms  may  be  Umited  by  the  context 125 

Application  of  grammatical  rules 125 

Bad  grammar  does  not  vitiate  an  instrument 125 

Apparent  grammatical  construction  must  yield  to  evident  intent 125 

Punctuation  of 126 

Transposition  of  words  or  clauses 126 

Presumptions  in  relation  to  contracts 127 

Contracts  partly  printed,  partly  written 127 

The  written  part  of  contract  prevails  over  the  printed 127 

Effect  of  custom  or  usage  on  contracts 127 

Distinction  between  custom  and  usage 127 

Existence  of  a  custom  a  question  of  fact 128 

Illegal  custom  cannot  affect  contract 128,  129 

Object  or  of&ce  of  custom  or  usage 128 

When  a  custom  will  be  permitted  to  affect  or  control  terms  of 128,  129 

Law  of  place 129 

Contracts  valid  where  made,  valid  everywhere 129 

Exception  to  above  rule 130 

Place  of  making  and  place  of  performance  of  a  contract,  as  affecting  its 

construction 130 

Time  of  contract 130 

Parol  evidence  to  explain  or  contradict 131 

Laws  of,  universal 4 

Action  for  torts  flowing  from 38,  135 

CONTRIBUTION : 

Jurisdiction  of  courts  of  equity  in  relation  to 182 

On  what  the  doctrine  of,  rests  182 

Illustration  of  the  doctrine  of 183 

Between  sureties 184 

CORPORATIONS : 

Contracts  by  or  with 79 

Appointment  of  agents  by 219 

LiabiUty  of,  to  attachment 421 

COURTS  OF  EQUITY  (See  Actions;  Equity): 

Act  on  the  person  independently  of  damages 20 

Interfere  to  prevent  violation  of  rights 20 

Examples  of  equitable  jurisdiction 21 

Compel  performance  of  acts  specifically 21 

Remedies  in  courts  of  law  and  of  equity  contrasted 19,  22 

Powers  of,  to  mould  decrees  so  as  to  do  exact  justice 23 

Restrain  commission  of  wrongful  acts 23 

May  afford  remedial  or  preventive  relief 24 

Right  of  trial  by  jury  not  absolute  in 24 


INDEX.  797 

COURTS  OF  EQUITY  —  Continued.  page. 

May  grant  or  refuse  relief  as  justice  requires 24 

Principles  upon  which  courts  of  equity  proceed ^ 24,  150 

The  term  "  conscience  "  as  used  in 25 

Will  not  allow  themselves  to  be  made  instruments  of  injustice 25 

Will  give  a  remedy  in  place  of  a  legal  remedy  taken  away 25 

Grant  relief  where  law  does  not 25 

Concurrent  and  exclusive  jurisdiction  of 26 

Are  governed  by  settled  rules  and  principles 26 

Object  and  origin  of 26 

Give  relief  when  legal  relief  is  not  attainable 26 

Do  not  review  or  criticise  decisions  of  courts  of  law 27 

Act  on  well-settled  principles 27 

Devise  new  remedies 27 

Province  of  the  judge  and  of  the  legislator 27 

Mode  of  relief  differs  more  than  principles  of  law 28 

General  rules  and  maxims  of  equity 28,  150 

COURTS  OF  LAW  (See  Actions) : 

Remedies  attainable  in 12 

Compensate  in  damages,  or  not  at  all 14 

Cannot  prevent  the  violation  of  a  right 14 

Afford  no  relief  outside  of  general  rules 14 

Judgments  of,  uniform,  simple  and  invariable 14 

Do  not  compel  specific  performance 15 

Do  not  prevent  the  commission  of  wrongs 15 

Powers  of,  terminate  with  the  judgment  and  its  enforcement 16 

Do  not  create  or  devise  new  principles 17 

Adopt  enlarged  and  liberal  principles 17 

Distinguish  cases  to  promote  justice 18 

Try  questions  of  fact  by  jury 18 

Often  furnish  defective  remedy 19 

Remedies  in  courts  of  law  and  equity  contrasted 19-22 

CUSTOM : 

Effect  of,  on  contracts 127,  228,  496 

Effect  of,  on  bailments 496 

Evidence  of,  when  admissible 128,  229 

Must  be  general  to  be  binding 128,  229 

DAMAGES : 

Not  caused  by  wrongs,  not  actionable 146 

Wrong  without  damage,  though  actionable 147 

When  too  remote  and  when  not 148 

In  actions  for  adultery 203 

In  actions  on  attachment  bonds 427 

In  actions  for  malicious  attachments 429 

In  actions  for  assault  and  battery 345 

Aggravation  of 345 

Mitigation  of 346,  347 

In  action  for  breach  of  promise 727 

Exemplary  damages  for  injuries  arising  from  a  defect  in  a  bridge 732 

In  assumpsit 404 


798  INDEX. 

DAYS  OF  GRACE:  page. 

When  allowed  on  bills  and  notes 640 

Statute  relating  to 641 

DEATH : 

Of  principal  revokes  agency 290 

Of  agent  terminates  agency 291 

Of  client  terminates  attorney's  authority 444 

Notice,  on  death  of  attorney ....    463 

Of  drawee  of  a  bill  does  not  dispense  with  notice  of  dishonor 629 

Of  maker  or  acceptor,  does  not  dispense  with  demand  of  payment  of  bill 

or  note 636 

Of  obligor  rendering  performance  of  covenants  of  bond  impossible 685 

DEBTORS: 

Attachments  against  absent 415 

Attachments  against  absconding 416 

DECEIT : 

When  actionable 138,  139 

DEED: 

Common-law  requisites  of 72 

Construction  of,  as  to  boundaries - 709,  714 

DEFENSES : 

General  principles  relating  to 157 

Must  exist  when  action  brought 157 

Person  having  no  legal  interest  cannot  defend 157 

Infancy  a  personal  defense 158 

Who  may  plead  usury 158 

Pleas  or  answers  in  abatement 158 

Pleas  or  answers  in  bar 158 

Demurrer 158 

Denials 159 

Matters  of  avoidance 159 

Counter-claims 159 

Set-off 159 

To  action  of  accounting 188 

Of  agents  against  principals 255 

Illegality  as  a  defense 255 

No  damage  to  principal 255 

Violation  of  instructions  from  necessity 256 

Ratification 256 

In  actions  brought  by  principals  or  agents ...    281 

To  actions  of  assault  and  battery 337 

Accident.. 337 

Self-defense 337 

Defense  of  another 338 

Defense  of  land,  house,  etc 339 

Defense  of  personal  property 340 

Preserving  the  peace 341 

Provocation 342 


INDEX.  799 

DEFENSES— Con^m  wed  page. 

Expulsion  by  innkeepers 343 

Removing  plaintiff  while  disturbing  religious  meeting 343 

Ejecting  plaintiff  from  public  conveyance  for  refusing  to  pay  fare 344 

Consent  to  the  assault  and  battery 344 

On  accommodation  paper 612 

To  actions  on  bonds 699 

Illegality  of  bond 699 

By  surety  on  bond 700 

Denying  execution  of  bond 700 

Impeaching  consideration  of  bond 701 

Averments  of  fraud 701 

Performance  of  condition  of  bond 703 

Discharge  of  bond  by  payment 704 

DELIVERY : 
Of  bond 679 

Essential  to  validity  of  bond 679 

Bond  signed  on  Sunday  and  delivered  on  Monday  valid 679 

What  constitutes 679 

Of  bond  as  an  escrow 679 

To  one  obligee,  a  delivery  to  all 679 

Possession  of  a  bond  prima  facie  evidence  of 680 

Of  bill  or  note 565 

Bill  or  note  has  no  legal  inception  until " 565 

Of  note  in  escrow 565 

Conditional 566 

DEMAND: 

Or  notice  before  suit 146 

Of  agent,  when  necessary  before  suit  to  recover  moneys  in  his  hands 253 

Before  action  against  trustee 253 

By  depositor  at  a  bank 253,  502,  504 

Of  deposit  not  necessary  where  a  bank  has  suspended  payment 254 

Collecting  agent  may  be  sued  without 254 

Of  payment  of  money  collected  by  attorneys 254,  461 

Notes  payable  on 558,  559 

Of  payment  of  chattel  notes 579,  580,  581 

Of  payment  of  lost  bills  or  notes 606 

DEPOSIT  (See  Bailment) : 

Nature  of  the  contract  of 495 

General  and  special 501 

Certificate  of '. 601 

Liability  of  banker  receiving  special  deposit  . 502 

Relation  between  bank  and  depositor 502 

•    Demand  before  action  to  recover 253,  502,  504 

Liability  of  bank  for  loss  of  general 503 

Repayment  of 503 

Of  trust  moneys 503 

Who  may  withdraw 504 


800  INDEX. 

DISBARRING  (See  Attorneys)  :  pagb. 

A.ttorneys 473 

Power  of  the  court  to  disbar 473 

What  is  a  ground  for .' 473 

Notice  to  attorney  of  proceedings  for 474 

Decision  and  effect  of 475 

Restoration  of  attorney  disbarred 475 

DISQUALIFICATION : 

Of  judges 51 

DISHONOR  (See  Bills  and  Notes)  : 

Of  bills  and  notes,  does  not  destroy  negotiability 592 

Notice  of 626,  644 

DISTRESS: 

Taking  of  cattle  as 62 

DISTRIBUTION: 

Of  assets 350 

Principles  of 350 

DOGS  (See  Animals) : 

Ave  a  species  of  property 298 

Unlawful  killing  of,  actionable 303 

Chasing  trespassing  cattle  or  horses  with 305,  321,  322 

Injuries  to  persons  by 308 

Knowledge  of  vicious  habits  of,  renders  owner  liable 312,  313 

Vicious  dogs  are  a  nuisance 313 

Knowledge  of  attempt  to  bite,  knowledge  of  savage  disposition 313 

Knowledge  of  wife  when  knowledge  of  husband 315 

Agent's  knowledge  of  viciousness 316 

Liability  of  possessor  of 316 

Liability  of  several  owners  of  dogs  doing  damage 318 

Statutory  liability  of  owner  of 319 

Killing  of,  when  lawful 320,.  321 

DOVES  (See  Animals)  : 

When  property 299 

DRAFT: 

And  bill  of  exchange  are  terms  applied  to  same  instrument 534 

DRAWER  AND  DRAWEE: 

Defined 536 

DRUGGIST : 

Liable  for  injuries  arising  from  negligently  labeling  drugs ., 136 

DRUNKENNESS: 

As  a  defense  to  an  action  on  a  bond 671,  677 

DUE  BILL: 

When  a  valid  promissory  note 343 

DURESS: 

Assent  obtained  by,  does  not  create  valid  contract 85 

May  be  by  imprisonment  or  threats 85 

Of  goods 86,  671 


INDEX.  801 

DURESS  —  Continued.  pagk. 

As  a  defense  to  an  action  on  a  note .- 615 

Eenders  bond  void 671,  699 

DUTY: 

Torts  founded  upon  violation  of  public 133; 

Torts  founded  upon  breach  of  private 134 

EJECTMENT: 

Ordinary  remedy  to  setde  disputed  boundaries 720 

ELECTION: 

Between  assumpsit  and  other  actions 405,  409 

Between  action  of  tort  and  on  contract 406 

Between  assumpsit  and  covenant. . , 409 

ENTRY: 

Upon  lands,  how  repelled 55 

EQUITY  (See  Courts  of  Equity)  : 

Acts  on  the  person  independent  of  damage ....  20 

Advantages  of  equitable  over  legal  remedies 21,  22 

Compels  the  performance  of  acts  specifically 21 

Restrains  the  commission  of  wrongful  acts 23 

Cases  in  which  equitable  interference  is  usually  invoked 23 

Relief  in,  remedial  or  preventive 24 

Generally  acts  without  the  aid  of  a  jury 24 

The  term  "  conscience  "  as  used  in 25 

Grants  relief  where  the  law  does  not 25 

Is  governed  by  settled  rules  and  principles 26,  27 

Object  and  origin  of  courts  of ^ 26 

Devises  new  remedies 27 

General  rules  and  maxims  of 28 

Jurisdiction  once  acquired  is  not  divested  because  courts  of  law  give  some 

reUef 28 

Union  of  legal  and  of  equitable  remedies 29,  157 

Mode  of  uniting  the  two  systems 29 

Principles  of  law  and  equity  unchanged 30 

Union  of  the  two  systems  has  not  enlarged  the  power  of  the  new  court. .  31 

Distinction  between  two  systems  preserved  in  the  Federal  courts 31,  32 

Joinder  of  actions,  whether  legal  or  equitable 32 

Principles  relating  to  suits  in 150 

Courts  of  equity  do  not  act  when  legal  remedy  exists 150 

Equitable  remedy,  where  remedy  at  law  doubtful  or  inadequate 150,  151 

Examples  of  equitable  interference 151,  152 

Will  not  interfere  where  there  is  a  remedy  by  appeal 152 

Follows  the  law 28,  152 

When  both  parties  are  wrong  equity  will  not  interfere 153 

Will  not  entertain  suit  founded  on  illegal  contract 154,  155 

Cancellation  of  contracts 154 

Where  the  equities  are  equal  the  law  prevails 28,  154 

Legal  title  regarded  until  destroyed  by  superior  equity 154 

Equitable  title  protected  when  good  conscience  requires  it 155 

•Vol.  I.  — 101 


802  INDEX. 

EQUITY  —  Continued.  pack. 

Defective  title  no^  strengthened  to  the  injury  of  a  prior  equity 155 

Prior  in  time,  prior  in  right 155 

Assists  the  vigilant 29,  155 

Equality  is  equity . . . .  ^ 28,  155 

He  who  seeks  equity  must  do  equity 28,  155 

He  vrho  has  committed  iniquity  shall  not  have  equity 29 

Suffers  not  a  right  without  a  remedy 29 

When  equities  are  equal,  the  vigilant  preferred 29,  155 

The  fund  receiving  the  benefit  should  make  satisfaction 29 

Terms  of  canceling  usurious  contract 156 

Regards  as  done  what  ought  to  have  been  done 29,  156 

Relief  against  accident  in 162 

(See  Accident.) 

Lost  instruments  under  seal 16S 

Lost  negotiable  notes 165 

Penalties  and  forfeitures 167 

Errors  in  payments  by  executors 168 

Defective  execution  of  powers ' 169 

Mistakes  in  transfer  of  bills  and  notes 171 

Will  not  relieve  against  negligence 172 

Actions  of  account  in 174 

(See  Accounting.) 

Jurisdiction  in  cases  of  account 174 

Appropriation  of  payments 176 

Accounting  between  principal  and  agent 178 

Contribution  in , 182 

Jurisdiction  over  accounts  pertaining  to  rents  and  profits 186 

In  actions  of  waste 187 

ESCROW : 

DeHvery  of  notes  in 665 

,       Delivery  of  deeds  in 679 

ESTOPPEL: 

Doctrine  of,  applied  to  contract  of  indorsement 600 

In  actions  on  official  bonds 690 

Doctrine  of,  as  appUed  to  boundaries 719 

EVIDENCE : 

In  actions  generally 44 

Parol  evidence,  to  contradict  or  explain  a  bill  of  lading 530,  531 

Parol  evidence  to  contradict  bill  or  note ....    609,  610 

EXECUTION : 

Assignment  of 359,  363 

Of  powers 169 

Of  bonds 676 

EXECUTORS : 

Contracts  by 78 

Errors  in  payments  by. 168 

Attachments  against 421 

4 


INDEX.  803 

EXECUTORS— ConHnued,  pagk. 

Indorsement  by 587 

Management  of  assets  by 660 

Appointment  of  receiver  against 660 

EXEMPTION : 

Of  attorneys  from  arrest 455 

EXPRESS  COMPANIES: 

Liability  of,  for  negligence  in  collecting  note 251 

EXPLOSIONS: 

Liability  for  damages  by 161 

FACTORS : 

Contracts  by  factors 80 

FARE: 

Refusal  to  pay,  on  public  conveyance , 344 

FEES: 

Of  attorneys 451 

FELONY: 

Killing  of  person  committing,  justifiable  53 

FENCE: 

Across  a  highway,  a  nuisance 62 

As  a  boundary 715 

FERRY :  • 

Infringement  of  franchise,  hov7  remedied 651 

FIRE: 

When  person  kindhng  fire  not  liable  for  injury  occasioned  by  it 144,  161 

FICTITIOUS : 

Suits 141 

Payee  of  bill  or  note 540 

FISHERY: 

Bill  of  peace  to  establish^right  of 650 

FORFEITURES : 

Relief  in  equity  against ♦ 167 

FORGED  PAPER: 

Payment  in,  a  nullity 572 

Forged  indorsements 589,  642 

Acceptance  of . . .  • 600,  643 

Payment  of 589,  601 

Forged  signature  of  surety  to  bond 701 

FRAUD : 

And  damage  give  right  of  action 138 

Legal  and  moral 139 

Of  agent 189 

When  principal  liable  for  fraud  of  agent 139,  287 

Defense  of,  in  assumpsit .' , .  376 

By  bailee 497 

In  procuring  execution  of  bill  or  note 566,  615 


804  INDEX. 

FRAUD —  Continued.  PAGE. 

As  a  defense  in  an  action  on  a  bond • 699 

Averments  of 701 

FRAUDULENT  ASSIGNMENTS : 

What  are 371,  372 

GARNISHMENT : 

Remedy  by 410 

GATES : 

Across  tiighways,  a  nuisance 62 

GRACE: 

Days  of 640   641 

GRANTS  : 

Construction  of,  as  to  boundaries 714 

GUARANTY  (See  BiUs  and  Notes): 

Of  bills  and  notes 582 

Essentials  of  contract  of 582 

Nature  of  the  contract  of 582 

Contract  of,  when  and  when  not  negotiable 582,  583 

Notice  of  protest  not  necessary  in  case  of 583 

When  guarantor  becomes  liable  on  his 584 

When  principal  and  guarantor  may  be  sued  jointly 583 

Form  of 584 

Consideration  for .* 685 

GUARDIAN: 

Contracts  of 79 

HIGHWAYS: 

Abatement  of  nuisances  in 62 

Unlawful  cutting  and  taking  away  of  grass  growing  along 148 

Are  regarded  as  easements, 708 

Right  of  public  in 708 

Right  of  owner  of  the  soil  in '. 708 

Sale  of  adjoining  lands,  reserving  lands  in 708 

Right  of  owners  of  land  bounded  "  on,  upon  or  along  " 708 

Construction  of  deeds  conveying  lands  bounded  on 709,  716,  717 

HIRING  (See  Bailments) : 

Classification  of  contracts  of 495 

HOLDER  (See  Bills  and  Notes)  : 

Of  bill  or  note 536 

Must  connect  himself  with  the  note  to  maintain  action  thereon 590 

HOMICIDE : 

In  defense  of  the  person,  or  of  property,  when  justifiable 53,    54 

In  defense  of  others,  when  justifiable 55 

HORSES  (See  Animals): 

Running  at  large,  detention  of. 303 

Liability  for  injuring  horse  running  at  large 303 

Unlawful  killing  of 304 

Chasing,  with  dogs 305,  322 


INDEX.  805 

HORSES  —  Continued.  page. 

Collisions  in  highways .' 305 

Hiring  horse  to  go  to  one  place,  and  going  to  another 305 

Liability  of  hirer  of  horses  for  injuries  to  thefti 306 

Pasturing  glandered  horses  on  lands  of  others 307 

Injuries  by,  turned  loose  in  the  highway 307 

Injuries  done  by  vicious 308 

Injuries  caused  by  runaway 309 

Injuries  to,  by  others  in  adjoining  lot 310 

Liability  of  owner  of  vicious  horses  for  injuries  to  persona 313 

HOTCHPOT  (See  Advancement) : 

Defined 210 

Statutes  of  various  States  relating  to 210 

Doctrine  of  bringing  advancements  into,  limited 211 

HUNTER: 

Title  of,  to  game  killed  or  pursued 301 

HUSBAND  AND  WIFE : 

Homicide  by  either,  in  defense  of  the  other •    55 

Husband  may  be  agent  for  his  wife 214 

Wife  may  be  agent  for  her  husband 214 

Husband  has  no  authority  to  beat  his  wife 342 

Husband  may  defend  himseK  against  his' wife ". 342 

Feme  covert  cannot  maintain  assault  and  battery  against  her  husband 342 

ILLEGALITY : 

Of  consideration  of  a  bond  vitiates  it '. 673 

•'Examples  of  considerations  adjudged  to  be  illegal 673 

Of  bonds  in  restraint  of  trade 699 

Created  by  statute,  fatal  to  validity  of  a  bond 699 

Must  be  clearly  pleaded 699 

Of  consideration  of  contracts  generally 106 

IMPOUNDING: 

Cattle 63 

INCOME : 

How  distinguished  from  annuities : 323 

INDICTMENT : 

Of  parties  chargeable  with  repairs  of  bridges,  for  neglect  of  duty 732 

INDEMNITY  BONDS: 

By  plaintiff  in  action  on  lost  notes 603,  605 

When  right  of  action  accrues  on 693 

Actions  on 693 

INDORSEMENT  (See  Bills  and  Notes)  : 

Of  bills  and  notes 585  ■ 

When  note  passes  by  delivery  and  when  by 585,  586 

Effect  of  assigning  a  negotiable  note  without 586 

By  president  of  a  corporation,  proof  of  authority 586 

Of  notes  payable  to  bearer  unnecessary 593 

Of  notes  payable  to  bearer  renders  indorser  liable 586 

In  pencil,  valid 586 


806  INDEX. 

INDORSEMENT— (7o«<tn«ei.  pagk. 

By  infant  will  transfer  title 586 

By  married  woman 587 

By  executor  or  administrator  of  deceased  payee 587 

By  oflS.cer  of  corporation  in  his  official  name 588 

By  assignee  of  insolvent  estate  "  as  assignor  " .• 588 

Who  may  transfer  title  by 589 

Payment  of  note  or  bill  bearing  forged 589 

May  be  made  in  pencil  or  by  initials 590 

Special  indorsements 591 

or  notes  payable  to  several  persons 591 

Of  notes  payable  to  a  firm 591 

By  partners  after  dissolution 592 

Of  note  after  dishonor 592 

Of  a  bill  before  it  is  drawn 593 

Presumed  to  be  before  bill  is  due 593 

Law  of  place  of,  regulates  rights  of  parties 593 

Form  of ! . . .  593,  594 

Without  recourse 594,  598 

In  blank  or  in  full  passes  title  of  indorsee 594 

Contract  of 594,  599,  600 

On  the  face  of  a  note  is  valid 594 

In  blank  or  in  full 594 

Effect  of  indorsement  in  blank •.  595 

Form  and  effect  of  a  full  or  special 595 

To  be  restrictive  "must  contain  words  of  restriction 595 

Effect  of,  cannot  be  changed  by  parol  agreement 596 

By  stranger  makes  him  an  original  promisor 596 

Of  non-negotiable  paper  renders  indorser  liable  as  guarantor  or  maker  . . .  597 

Eight  of  holder  to  strike  out 597 

Eight  of  payee  or  indorsee  to  make  restrictive 597 

By  officer  or  agent  to  avoid  liability 598 

Does  not  become  operative  before  delivery  of  the  note 599 

Of  notes  after  maturity 599 

As  an  admission  of  the  validity  of  each  prior 599 

Of  usurious  notes 600 

Effect  of  receiving  or  releasing  security  on 602 

INFANCY; 

Is  a  personal  defense 158 

INFANT : 

Is  not  bound  by  account  stated 192 

Note  of,  voidable 537 

May  indorse  bill  or  note  so  as  to  transfer  title 586 

Bond  of,  void  at  law • 671 

Ratification  of  bond  of,  must  be  of  as  high  authority  as  the  bond 671 

INJUNCTION : 

Defined 68 

To  compel  performance  of  decree  in  bill  of  quia  timet 661 

To  protect  enjoyment  of  toll-bridge 733 


INDEX.  807 

INNKEEPERS:  p^o^^ 

Must  entertain,  whom 34.3 

Right  of,  to  eject  a  traveler 343 

INSURANCE: 

What  passes  on  assignment  of  policy  of 37I 

Assignment  of  policy  after  loss,  passes  what 371 

Policy  may  be  assigned  after  loss  without  the  consent  of  the  company. . .  371 

INSANITY :     ' 

Of  principal  may  operate  as  a  revocation  of  his  agent's  authority 290 

INSTALLMENTS : 

Notes  may  be  made  payable  in 547 

INTERPLEADER : 

Nature  of  the  remedy gg 

Between  captain  of  trading  vessel  and  persons  claiming  cargo 533 

JUDGE: 

Disqualification  of 5^ 

JUDGMENT: 

Assignment  of 359 

May  be  assigned  by  parol 353 

What  passes  on  assignment  of .' , ,  _  365 

JURISDICTION : 

Definition  and  incidents  of 44 

Original  and  appellate 44 

Concurrent,  exclusive  and  assistant ' 44    45  43 

Taking  cognizance  of  action,  a  decision  in  favor  of 45 

Incidents  carried  with  grant  of 45 

Acts  without  jurisdiction  null  and  void 45 

Practice  where  the  court  has  no  jurisdiction 45 

Common-law  jurisdiction 4g 

Constitutional  and  statutory 4g 

Of  State  courts 47 

Of  courts  of  equity 26 

Of  superior  and  inferior  courts 48 

Exclusive  or  concurrent . . , 26  48 

Of  sabject*matter 49 

Of  subject-matter  cannot  be  conferred  by  consent 60 

Want  of  jurisdiction  of  subject-matter  cannot  be  waived  by  agreement. . .  50 

Objection  to  want  of,  may  be  raised  at  any  time 51 

Courts  cannot  be  deprived  of,  by  agreement  of  parties 50 

Of  the  person 50 

How  acquired 50 

May  be  given  by  consent 50 

In  special  cases 51 

Raising  or  waiving  objection  to  want  of 51 

KNOWLEDGE : 

Of  agent,  knowledge  of  principal 231,  316 

Of  vicious  habits  of  animals 311    316 


808  INDEX. 

LAKES :                                                                                                             page. 
Title  to  lands  bounded  on 711 

LANDS: 

Assignment  of,  and  interest  in 356 

LAWS: 

Their  nature  and  object 5 

Necessity  for  enactment  of 5 

Merits  and  advantages  of  the  common  law 6 

Origin  of  common-law  rules  and  equitable  principles 7 

Judicial  precedents 8 

Province  of  the  judge  and  legislature 8,  27 

Every  person  presumed  to  know - 85 

LEASE : 

Contract  for,  must  show  length  of  term 113 

LETTER : 

Contracts  by 86 

LEGAL  ACTIONS  (See  Actions)  : 

Relief  granted  in 12 

LIENS: 

Defined 65 

General  and  particular 65 

Possession  essential  to  creation  and  continuance  of 65 

Equitable  jurisdiction  over 186 

Of  agents 273 

Particular  liens  of  agents 273 

General  liens  of  agents 274 

How  acquired 274 

Upon  what  demands  a  lien  may  be  had 275 

Waiver  of  lien,  or  of  right  to  it 276 

Enforcing 277 

Of  sub-agent 277 

Of  attorneys,  for  costs • 453,  454 

Of  auctioneer , 487 

Of  banks  and  bankers 500 

Of  shipping  agent 530 

LIGHT.    (See  Ancient  Lights.) 

LOAN: 

Defined 495 

LOST  INSTRUMENTS: 

Jurisdiction  in  equity  in  case  of  lost  bonds 163 

Deeds 164 

Mortgage 164 

Negotiable  notes 165,  639 

Bonds 705 

MAIL: 

Liability  for  moneys  lost,  by  those  intrusted  with 267 


INDEX.  809 

MALICIOUS  ATTACHMENT:  page. 

When  action  for,  lies 143,  428 

What  malice  must  be  shown  to  sustain  action  for 428 

Obtained  in  a  court  within  a  foreign  jurisdiction 428 

Cannot  be  brought  before  the  termination  of  the  attachment  suit 429 

Damages  in  actions  for 429 

MALICIOUS  PROSECUTION.     (See  Malicious  Attachment.) 

MANDATE  (See  Bailment) : 

Defined 495 

MANDAMUS: 

Office  of  the  writ , 68 

Admission  of  attorney  cannot  be  compelled  by 433 

To  compel  repair  of  bridge 732 

MARSHALING-  ASSETS  (See  Assets,  Administration  of): 

Nature  of  the  proceeding 352 

Principle  upon  which  the  court  proceeds 352 

Application  of  the  principles  governing , 352 

MARSHALING-  BOUNDARIES: 

Order  observed  in 713 

MARRIAGE  (See  Breach  of  Marriage  Promise) : 

Promise  of,  by  infant,  a  consideration  for  a  promise  by  an  adult 102 

MARRIED  WOMAN: 

Note  of,  void  at  common  law 537 

Indorsements  by 687 

Action  against  indorser  of  note  made  by 600 

Cannot  make  obligatory  contract  at  common  law 671 

Bond  of,  void  at  common  law 671 

MAXIMS: 

"  Uhijus  ihi  remedium  " 4 

"  Void  in  part,  void  in  toto  " 107 

G-eneral  rules  and  maxims  of  equity 28,  29 

MEETINGS : 

Removing  persons  from  religious 343 

MISTAKE : 

As  to  law  does  not  excuse  non-performance  of  contract 84 

As  to  foreign  law  regarded  as  a  mistake  of  fact 85 

Effect  of  mistake  of  fact  on  a  contract 85 

Liability  of  principal  for  mistake  of  agent 288 

MONUMENTS: 

Control  in  determining  boundaries 714 

Parol  evidence  as  to  monuments  mentioned  in  deeds 715 

MORTGAGE : 

May  be  assigned  by  instrument  not  under  seal 363 

Passes  with  assignment  of  the  debt  secured 365 

Guaranty  of  collection  passes  with  assignment  of 365 

Vol.  L— 102 


810  INDEX. 

UORTGA.a'K— Continued.  PAffE. 

Liabilities  of  assignee  of ; 366 

False  representations  on  the  sale  of 367 

Equity  will  not  set  up  a  prior  unsealed  mortgage  against  a  judgment 
creditor 154 

MOTIVE : 

With  which  an  act  is  done  as  a  test  of  whether  the  act  is  actionable,  2,  35,  36 

NAVIGATION : 

Interruption  of,  by  bridges,  may  be  restrained 730 

NEGLIGENCE : 

lu  putting  up  drugs,  renders  druggist  hable  for  resulting  damage 136 

Of  party  seeking  relief  from  accident 172 

Kinds  and  degrees  of 497 

NEGOTIABLE  PAPER  (See  Bills  and  Notes)  : 

Term  "  negotiable  instrument "  defined 535 

NegotiabiUty  of  bills  and  notes 646,  561 

Presumptions  in  favor  of 609 

Negotiable  bonds. . . . , 688 

Lost 165 

NOTES  (See  Bills  and  Notes)  : 

What  passes  by  assignment  of  note  secured  by  mortgage 365 

NOTICE  (See  Knowledge) : 

Before  suit 146 

To  attorney,  of  complaint  against  him  professionally 474 

Of  non-acceptance  of  bills 626  . 

Of  non-payment  of  bills  and  notes 644 

To  remove  nuisance 61 

NOVATION : 

Change  of  parties  by 80 

NUISANCE : 

Abatement  of 60 

May  be  public  or  private 60 

Reasons  for  allowing  the  abatement  of 61 

Notice  to  remove,  before  abating 61 

Abatement  of  private 61 

Of  omission 61 

Of  house  on  a  common  as  a 61 

Abatement  of  public  nuisances 62 

Gate  or  wall  across  highway  is  a 62 

Fence  encroaching  on  a  highway  is  a 62 

Removal  of  a  fence  as  a 62 

When  a  bridge  is  a 730 

OFFICER : 

Assignment  of  future  salary  of,  void •. 361 

OFFICIAL  BONDS  (See  Bonds): 

Construction  and  eflfect  of 689 

Validity  of 690 

Rights  and  liabilities  under 691 


INDEX.  811 

OFFICIAL  BONDS  —  Continued.  pagk. 

Breach  of 691 

Discharge  of 691 

Of  United  States  officers 692 

Of  sheriffs,  constables,  etc *    ...   693 

ORDER: 

For  goods  in  form  of  bill  of  exchange 574,  575 

Acceptance  of 576 

Distinction  between,  and  negotiable  bill 577 

OYSTERS : 

Planted  in  beds  are  the  property  of  the  planter 299,  301 

PARENT  AND  CHILD: 

Defense  of,  justifiable ^ 55 

Recaption  of  child 58 

Consideration  arising  from  the  relation  of 108 

PARTY  WALLS: 

Right  to  rebuild  or  repair 144 

PARTIES : 

To  actions 43 

To  contracts 77 

To  bills  and  notes 535 

PARTNERS : 

Contracts  by 78 

Indorsement  by 591 

Notice  of  protest  to 634 

Notice  to  one  partner,  notice  to  alL 648 

Of  attorneys   464 

PAWN.     (See  Bailment.) 

PAYMENT : 

Errors  in  payments  by  executors,  etc 168 

To  agents 282 

By  agents  for  principals 284 

Auctioneers  may  receive 477 

By  bill  or  note 568 

■     Presentment  of  bills  and  notes  for 635 

Of  bills  and  notes,  by  whom  made 641 

Proceedings  on  non-payment  of  bills  and  notes 644 

Discharge  of  bonds  by 704 

PEACE.    (See  Bilh  of  Peace.) 

PENALTIES : 

Relief  in  equity  against  penalties  and  forfeitures 167 

PERFORMANCE : 

Of  conditions  of  bonds 685 

PERSON : 

Rights  of 1 

Jurisdiction  of 50 

Defense  of 53 


812  INDEX. 

PLACE,  LAW  OP:  page. 

Contract  valid  by  law  of  place  where  made,  valid  everywhere 129 

Exception  to  rule 130 

Construction  of  contracts  in  regard  to 130 

Of  indorsement  controls  rights  of  parties 593 

PLEDGE  (See  Bailment) : 

Power  of  agent  to  pledge  goods 278 

PLEADINGS : 

In  actions 44 

In  assumpsit 392 

PLEAS : 

In  abatement 158 

In  bar 158 

In  assumpsit 392 

POSTMASTER: 

Liability  of,  for  torts  of  assistants 267 

Bonds  of 692 

POSSESSION: 

Of  notes,  when  prima  facie  proof  of  ownership , 567 

PRESUMPTION : 

Of  consideration  for  negotiable  notes 90,  608 

That  every  person  knows  the  law 84,     85 

Of  fraud  or  mistake  from  inadequacy  of  consideration 95 

That  the  parties  acted  legally  in  making  a  contract 127 

Where  one  purchases  land  in  name  of  another  and  pays  the  considera- 
tion      208 

Where  land  is  conveyed  voluntarily  by  parent  to  child 208 

Where  husband  voluntarily  conveys  land  to  wife 208 

Where  ^curities  are  taken  in  the  name  of  a  child 209 

Against  agent  on  refusal  to  account 252 

Where  bill  or  check  is  taken  on  precedent  debt 568 

Where  bill  or  note  was  taken  cotemporaneously  with  contracting  a  debt. .  568 

That  a  bill  was  indorsed  before  due 593 

In  favor  of  negotiable  paper 609 

That  drawer  or  indorser  have  been  injured  by  want  of  notice  of   dis- 
honor    627,  628 

Of  payment  from  lapse  of  time 704 

Of  ratification  of  acts  of  agent 234 

PRINCIPAL  AND  AGENT.    (See  Agency. 

PRIVITY : 

Between  wrong-doer  and  injured  party 136 

PROHIBITION : 

Nature  of  the  remedy 68 

PROMISE  (See  Breach  of  Marriage  Promise)  : 

Of  marriage 723 

Mutual  promises  as  a  consideration 102 


INDEX.  813 

PROTEST,  NOTICE  OF:  pack. 

Form  and  essentials  of 633,  644 

Service  of 645 

PROPERTY : 

Rights  of 2 

Defense  of 53,  54 

PUBLIC  OFFICER: 

When  liable  on  his  contracts 262 

Liability  of,  for  torts 267 

Bonds  of 689 

Assignment  of  salary  of,  against  public  policy 361 

PUBLIC  POLICY: 

Assignments  void  as  against 361 

Bonds  void  as  against 699 

PUNCTUATION : 

As  an  aid  in  the  construction  of  statutes 126 

Q  VIA  TIMET.      (See  Bill  of  Quia  Timet.) 

QUO  WARRANTO: 

Nature  of  the  w^rit 69 

RAILWAYS: 

Expulsion  of  passengers,  by  employees  of 344 

RAISED  CHECK: 

Bank  paying,  must  bear  the  loss 643 

RATIFICATION : 

Of  act  of  agent  binds  principal 219,  232 

To  be  binding  must  be  with  full  knowledge 233 

Must  be  entire  or  not  at  all 233 

When  presumed 234 

Once  made  cannot  be  recalled 234 

Relates  back  to  the  time  of  the  ori^nal  transaction 234 

When  to  be  under  seal 234 

REAL  PROPERTY : 

Defense  of 54 

RECAPTION : 

Of  person  or  property 58 

Nature  of  the  remedy 58 

Of  the  person  of  a  relative 58 

Of  personal  property 58 

Of  real  property 59 

RECOUPMENT : 

Of  damages  in  an  action  on  a  note 615 

RECOURSE : 

Indorsements  without  recourse ". 598 

RELEASE: 

Of  one  of  two  several  obligors  on  a  bond 687 

Of  surety  on  a  bond 687 


814  INDEX. 

REMEDIES.     (Se'e  Action.)  PA6B. 

REMEDIES  WITHOUT  ACTION: 

Preventive  measures ^ 52 

Defense  by  resistance 52 

Defense  of  the  person,  how  far  justifiable 53 

Homicide  justifiable  in  the  prevention  of  felonies 53,  54 

Self-defense  always  justifiable 53 

Repelling  force  by  force  in  defense  of  personal  property 53 

Owner  may  lawfully  use  force  to  prevent  wrong-doer  from  carrying  away 

goods 53 

Killing  of  pick-pocket  not  justifiable 53 

Degree  of  force  justifiable  in  defense  of  property 54 

Defense  of  real  property , 54 

Defense  of  possession  of  lands 54 

Force  not  justifiable  for  the  purpose  of  reducing  right  of  possession  to 

possession 54,  55 

What  force  may  be  used  in  making  entry  upon  lands 55 

Trespass  upon  lands  does  not  justify  use  of  deadly  weapon 55 

Defense  of  others 55 

Homicide,  where  justifiable  in  defense  of  others 55 

Apprehending  criminals  and  wrong-doers 56 

Arrest  of  criminals  without  warrant 56 

Arrest  of  persons  committing  misdemeanor 56 

Resistance  of  process,  escapes,  rescues,  etc 57 

Illegal  arrest  may  be  lawfully  resisted 57 

Recaption  of  person  or  property 58 

Recaption  of  the  person  of  a  relative. . .  « 58 

Recaption  of  personal  property 58 

Retaking  property  by  force  from  wrongful  taker 59 

Retaking  goods  wrongfully  detained 59 

Re-entry  on  real  property 59 

Effect  of  an  entry  by  force  by  the  owner  of  lands 60 

Abatement  of  nuisances 60 

(See  Nuisance.) 

Abatement  of  private  nuisances 61 

Abatement  of  public  nuisances 62 

Distress  and  seizure  of  cattle 62 

Seizure  of  cattle,  damage  feasant 62 

Remedy  by  distress  and  action  of  trespass 63 

In  what  cases  the  remedy  by  distress  may  be  resorted  to 63 

Cattle  cannot  be  impounded  after  tender  of  amends 63 

Cattle  distrained  must  not  be  beaten,  wounded  or  used 63 

Retainer 64 

Remitter 64 

Lien 65 

Redress  by  joint  act  of  the  parties "66 

Accord 66 

Arbitration ,. 66 

Redress  by  operation  of  law 66 


INDEX.  816 

REMEDIES  WITHOUT  ACTlOliJ  —  Continued.  page. 

Set-oflf  of  demands 66 

Marriage  of  debtor  and  creditor 67 

Caution  in  relation  to  resorting  to 67 

REMITTER: 

Takes  place,  when 64 

RENT: 

Apportionment  of 181 

Jurisdiction  of  equity  over  rents  and  profits 186 

RENT-CHARGE : 

How  difiering  from  an  annuity 323 

REPAIR : 

Of  bridges 731 

Remedies  for  neglect  to  repair  bridges 732 

RETAINER: 

Defined 64 

When  the  right  of,  may  be  exercised 64 

Of  attorneys 456 

When  presumed 456 

Proof  of 457 

REVOCATION: 

Of  authority  of  agent  by  principal 289 

Mode  of 289 

Renunciation  of  agent 290 

By  operation  of  law 290 

By  death  of  principal 290 

By  death  of  agent 291 

REWARD : 

Action  on  advertisement  offering 99,  100 

When  right  of  action  to  recover,  accrues v- 100 

RIGHTS: 

Of  person 1 

Of  natural  persons 1 

Of  artificial  persons 1 

How  far  inalienable 1 

Hew  declared,  defined  and  secured 2 

Violation  of,  when  actionable 2 

Of  property 2 

How  declared,  defined  and  secured 2 

Invasion  of,  how  redressed 4 

Distinction  between  legal  and  equitable 8 

Of  action 35 

RIVERS: 

As  boundaries 711 

ROBBERY: 

KiUing  of  person  attempting  to  commit,  justifiable 63 


816  INDEX. 

SALE :  PAGK. 

By  auctioneers 477 

Powers  and  duties  of  auctioneers  in  making 477 

Auctioneer  may  prescribe  conditions  of 477 

May  receive  payment 477 

Auctioneer  cannot  warrant  goods  sold 477 

Auctioneer  cannot  delegate  his  powers 478 

Auctioneer  cannot  sell  at  private  sale 478 

SCHOOLMASTER : 

What  force  may  be  lawfully  exercised  by 342 

Right  of,  to  inflict  corporal  punishment 342 

Cannot  compel  pupil  to  disobey  parents'  instructions  as  to  studies  to  be 

pursued ....  342 

SEA  SHORE: 

What  constitutes,  at  common  law 710 

Title  to 710 

Massachusetts  statute  as  to , . .  710 

SEAL: 

Raises  a  presumption  of  consideration 90 

What  is  a 674,  675 

Sealed  notes  are  not  negotiable 574 

Can  be  no  common-law  bond  without 674 

Bond  may  be  valid  in  some  States  without 675 

Several  obligors  may  adopt  one  , 675 

SEDUCTION : 

Of  pauper  by  keeper  of  a  poor-house 150 

SELF-DEFENSE: 

Right  of 52,  53 

As  a  defense  to  an  action  for  assault  and  battery 337 

Firing  at  an  assailant  in,  and  killing  a  by-stander 338 

How  much  force  may  be  used  in 338 

SET-OFF : 

Right  of 66 

Against  assignee  of  non-negotiable  note 701 

.SEWER: 

Liability  for  obstruction  of 142 

SHIPMASTERS : 

Contracts 80 

Responsibility  of,  for  goods  stolen  by  the  crew. .'. 264 

Right  of,  to  inflict  corporal  punishment  on  crew 341 

SIGNATURE : 

To  contracts « 114 

SKILL: 

Liability  of  attorneys  for  injuries  from  want  of 445 

SLANDER : 

Damages  too  remote  to  sustain 149 


INDEX.  817 

SPECIFIC  PERFORMANCE:                                                                         page. 
Not  decreed  by  courts  of  law 15 

STOPPAGE  m  TRANSITU: 

Right  of  vendor  or  consignor  to 528 

STREAMS : 

Construction  of  grants  bounded  on 711 

STREET: 

Right  to  the  soil  in 708 

Grants  of  lands  bounded  on 708,  709,  714 

SUBJECT-MATTER: 

Jurisdiction  of  the  supreme  court  over 49 

Consent  cannot  give  or  deprive  courts  of  jurisdiction  over 50 

SUBSCRIPTIONS: 

lELow  far  binding 104,  105 

SUBSTITUTES: 

Right  of  agent  to  employ 243,  244 

SUBSTITUTION: 

Change  of  parties  to  contracts  by 80 

SUMMARY  PROCEEDINGS: 

To  compel  payment  of  moneys  collected  by  attorneys 462 

SURETIES: 

Action  by,  against  principal  to  recover  back  moneys  paid  for  him 109 

Right  of  accounting  between 184 

Effect  of  adding  word  "surety  "  to  a  signature  in  a  note 545 

Protection  of,  by  bills  quia  timet 656 

Release  of  sureties  to  a  bond 687 

On  bonds  may  set  up  same  defenses  as  their  principals 7C0 

Fraud  in  procuring  persons  to  act  as 702 

Failure  to  procure  co-surety  according  to  agreement,  a  valid  defense  .    ...  667 

SURGEON: 

Liable  for  unskillful  treatment  of  patient  136 

TELEGRAPH : 

Assent  given  or  contracts  made  by 87 

Offer  and  acceptance  by  telegram,  makes  a  valid  contract 87,     88 

Offer  by  letter  and  acceptance  by  telegram 88 

Parties  using,  not  bound  by  errors  of  operator 88 

Contracts  by,  when  within  the  statute  of  frauds 89 

Telegrams  as  evidence 89,     90 

Company  liable  for  negligence  of  its  operatives 264 

Company  liable  for  the  errors  of  its  agent 287 

TENDER: 

Of  performance  of  condition  of  bond 694 

TIME: 

Of  payment  need  not  be  specified  in  notes 558 

How  computed  in  contracts 559 

When  a  note  takes  effect 567 

Prior  in  time,  prior  in  right 155 

Vol.  L  — 103 


818  INDEX. 

TITLE :  PAOt. 

Parties  having  legal  title  are  regarded  as  the  owners 154 

Equitable  title  protected  in  proper  cases 155 

TOLL  BRIDGE: 

When  authorized  by  statute  is  a  public  highway 733 

Eight  of  State  to  grant  exclusive  right  to  erect 733 

Injunction  to  restrain  another 733 

Franchise  may  be  taken  for  pubhc  use 734 

Payment  of  tolls,  where  legally  enforced 734 

Duty  to  maintain 734 

Injuries  received  in  crossing 734,  735 

TORTS : 

May  or  may  not  arise  on  contract 4 

No  wrong  without  a  remedy 4 

When  actionable 3,  4,  5,  38,  132 

Actions  founded  upon 131 

Defined  and  illustrated 131,  132 

Arising  from  the  invasion  of  a  right 132 

Pounded  upon  a  violation  of  a  public  duty 133 

Founded  upon  the  infraction  of  a  private  compact  or  duty 134,  135 

Privity  of  contract  between  wrong-doer  and  party  injured 136 

Founded  on  negligence 136 

On  a  false  warranty  or  deceit 137,  138 

Moral  and  legal  fraud  distinguished 139 

Novelty  of  actions ' .   140 

Fictitious  or  wager  suits  not  permitted 141 

Illegal  or  wrongful  acts 142 

Injuries  arising  from  the  exercise  of  a  Jegal  right 143 

Rightful  acts  no  ground  of  action 143 

Explosions  of  steam  boilers 143,  144 

Removing  lateral  support  to  lands 144 

Taking  down  or  altering  party  walls 144 

Burning  over  fallow  ground 144 

Cutting  off  supplies  of  wells 144 

Obstructing  ancient  lights 145 

Acts  done  under  legislative  authority 145 

Injuries  done  in  construction  of  canals   145 

Consent  of  injured  party  bars  action 146 

Demand  or  notice  before  suit  brought 146 

Splitting  demands 146 

Damages  not  caused  by  wrongs,  not  actionable 146 

Damnum  sine  injuria 147 

Judicial  acts  do  not  give  right  of  action 147 

Wrong  without  actual  damage,  is  actionable 147 

Malicious  refusal  to  receive  a  vote  actionable 148 

Continuing  tortious  acts 148 

Abusive  language  in  the  street 148 

Bringing  an  action  in  the  name  of  another 148 

Refusal  of  banker  to  cash  a  check 148 


INDEX.  619 

TORTS  —  Continued.  PlOl. 

Trespass  on  lands  without  damage 148 

Diversion  of  water-course  without  damage 148 

Cutting  and  taking  away  grass  in  highway 148 

Damages  when  too  remote,  and  when  not 148 

4        Damages  in  actions  of  slander 149 

Refusal  of  teacher  to  instruct  children 149 

Preventing  collection  of  demands   150 

Seduction  of  pauper  by  keeper  of  poor-house 150 

False  swearing . . .  • 150 

Liability  of  agrents  for 263 

Liability  of  agents  to  third  persons  for 264 

Agent,  when  not  liable  for 266 

Principal  not  liable  for  willftil  torts  of  agent. 266 

Liability  of  public  agents  for 267 

Liability  of  public  agents  for  torts  of  servants 267 

Liability  of  principal  for  torts  of  agent 287 

Principal  liable  for  wrongs  which  he  directs 287 

Principal  liable  for  negligent  performance  of  duty  by  agent 287 

Principal,  when  liable  for  fraud  of  agent 287 

Principal  liable  for  tortious  act  ratified  by  him 288 

Principal  not  liable  for  willful  torts  of  agent 288 

Liability  of  principal  for  mistakes  of  agent 288 

Waiving  tort  and  bringing  assumpsit 405 

Attachment  will  not  lie  in  action  of 413 

TRANSFER: 

Of  bills  and  note^, 585 

TRESPASS: 

Liability  of  agent  for  malicious 264 

Principal  not  hable  for  willful  trespass  of  agent 266 

TRUST: 

And  confidence  as  a  consideration 101 

TRUSTEES :  ^ 

Contracts  by 78 

Efiect  of  depositing  trust  fund  in  name  of 503 

TRUSTEE  PROCESS: 

Name  applied  to  attachments  in  New  England 410 

USAGE: 

Not  the  same  thing  as  custom 127 

Office  or  object  of  custom  or 128 

When  permitted  to  control  contract 128 

Illegal  custom  or^ 129 

Influence  of,  in  construction  of  contracts 228 

Proof  of,  in  relation  to  agency 229 

Effect  of,  on  agency *. 243 

Effect  of,  on  bailments 496 


820  INDKX. 

USURY:  FAOB. 

Who  may  set  up  defense  of...^ 158 

When  a  defense  against  a  bank 615 

Who  may  not  set  up  defense  of 600 

WAGERS: 

When  an  action  will  or  will  not  lie  upon 142 

WATER: 

Cutting  oflf  underground  current,  when  not  actionable 144 

WAR: 

InQuence  of,  on  agency 215 

WARRANTY: 

When  agent  may  give 222 

Auctioneer  cannot  bind  his  principal  by 478 

When  auctioneer  liable  on 481 

Recouping  damages  for  breach  of,  in  action  on  a  note 615 

WASTE: 

Jurisdiction  in  equity  for  an  account  in  cases  of 187 

WAY: 

Unauthorized  use  of  right  of,  actionable 142 

WELL: 

Injury  to  others  from  digging  of,  when  not  actionable 144 

WILL: 

Breach  of  agreement  to  compensate  services  by 269 


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